Obama Administration Loses Effort To Block Injunction of Don’t Ask Don’t Tell — Announces Appeal To Reverse Victory Over DADT

Just days after the Obama Adminstration announced that it would appeal a historic victory in favor of same-sex marriage in Massachusetts, the Administration is now appealing an equally historic victory over the Don’t Ask, Don’t Tell policy. U.S. District Judge Virginia Phillips refused demands by the Obama Administration that she rescind the national injunction against the policy. Now it has announced that, while it has had to suspend further discharges of gay personnel, it will appeal the decision to be able to resume such discharges.

Let us be clear on this point. The Administration is not required to appeal this decision. This is a discretionary decision. Moreover, the Administration did not have to oppose the injunction. It could have taken an appeal and allowed the injunction to stand. Once again, it is taking actions that appear in direct conflict with the President’s insistence that he opposes DADT. If DADT is discriminatory, why would the President be fighting to hard to resume discharges and preserve the policy? Would the Administration fight to preserve a racial or gender discriminatory policy? If the President believes that the Constitution does not protect against discrimination against gays, he should state so clearly. If he is opposed to the law, he also has wide discretion on when to enforce such laws. Only recently did the Defense Department impose a rule limiting, for example, the use of third-party snitches.

Any duty to defend the law was satisfied at the trial level, though it has been argued that the Justice Department should at least ask for a review of such a decision. I will note that when I had the Elizabeth Morgan law struck down before the D.C. Circuit, the Administration at that time decided not only not to seek review from the Supreme Court, it did not even ask for reconsideration before the D.C. Circuit or an en banc review. While members wanted to defend the law, the Administration invoked its discretion not to ask for review. (It had prevailed in the trial court so this was the first ruling striking down the law). In that case, the court had handed down a rare finding of a bill of attainder — something that many in Congress probably wanted reviewed due to its obvious importance in later challenges of federal laws.

More importantly, even if he feels a need to appeal as a general policy as part of his duty as the head of the Executive Branch, why oppose the injunction in the interim? Finally, the Administration argued in the Witt case that courts should not allow gay military personnel to show that they are not individually threats to good order and discipline. The Administration insisted that the courts should accept the military’s word that all openly gay and lesbian personnel are threats. It did not have to adopt such a position and could have assisted in a major advance (ultimately ordered by the Ninth Circuit over its objections) that required individual proof of these claims. Thus, if it really opposed DADT, why not adopt a moderate position that allowed a citizen to present evidence in her own defense that she was not a threat to good order and discipline. What the judge found in that case was that, once able to look at her as an individual, it was DADT that was the threat to good order and discipline in her unit.

The Obama Administration’s efforts to preserve DADT and to reverse gains on same-sex marriage occurs at the same time wen it has successfully sought a review by the Supreme Court of a lower court ruling against former Attorney General John Ashcroft. The Administration is arguing that Ashcroft had absolute immunity to use the material witness law to round up Muslim men and hold them without any intention of actually using them as witnesses. Now to keep you up to date, Obama has previously (1) barred investigations in torture and war crimes by the Bush Administration; (2) refused to prosecute people who tortured detainees; (3) refused to discipline attorneys responsible for the program; (4) refused to prosecute high level officials who ordered torture; (5) successfully sought to dismiss lawsuits seeking review of cases for torture victims; and now (6) seeks to bar any civil liability for officials in ordering abuses (including arbitrary detention and abusive confinement). I discussed this issue this week on Countdown. I must confess not just disappoint but disgust with this line of cases, as I did on the program.

What is fascinating is that the Democrats appear likely to lose significant seats this election and possibly control of the House. The Administration made a cynical calculation in these cases to oppose fundamental principles in favor of transient politics. The result is that they could not be more unpopular. If the President had simply tried to fight for principle, he would be in no worse a position in the polls but would have stood for something. For civil libertarians, President Obama now ranks with one of the worst presidents in our history and virtually indistinguishable in these cases from his predecessor. For all of those Democrats in Congress begging for support, I will simply add that only a handful of these members publicly denounced the President for these actions and policies. Even with these appeals, there has been virtual silence from Democratic leaders or members.

Source: Yahoo

Jonathan Turley

86 thoughts on “Obama Administration Loses Effort To Block Injunction of Don’t Ask Don’t Tell — Announces Appeal To Reverse Victory Over DADT”

  1. Kay,

    I’ve already said I’m not going to give you any specific legal advice further than you really need to hire an attorney.

  2. Dear Tony

    I agree w your comments on Germany. They have a modern constitution that restricts the powers of the judiciary too. After the Holocaust they prohibited jailing for civil contempt.

    BIL — How do you explain the fact that 5 USC 552a requires annual privacy act reports but the agencies don’t file them? Following up w our conversation about my appeal of my Privacy Act complaint, the appeals panel dismissed my appeal as unimportant with no explanation. Judge Bates ruled at request of DOJ that DOJ can create Prisoner Tracking System records without a criminal prosecution and search for citizens without a criminal investigation. I spent about 4 months on the documents. At this point my plan is to refile my complaint based on First Amendment Retaliation and not bother going to the S.C. because I don’t think there is even a chance they will take it without an appellate opinion and I can support the complaint using 1st Amendment Retaliation now that DOJ has stated that it is their unofficial policy to jail citizens to stop them from filing Rule 60b(3) motions in a non rendering court without permission. So that leaves the precedent open for DOJ to jail homosexuals or anyone else without liability and without a criminal prosecution and it leaves precedent for the USMS to conduct searches for anyone without a criminal investigation. Great country huh?

  3. Tony,

    It’s simpler than that. It’s passing the buck to the DOJ so the White House can cater to the JCS and their stuck in the ’50’s mindset without getting their hands dirty. “It’s not our fault” followed by what will surely be a DOJ pronouncement that “the White House hasn’t indicated this is a priority.” Uh huh. More shoveling to hide what is a theocratic decision, not a military decision. Homosexuals have been in the military since there has been a military because homosexuals have been a part of society since well before we started farming. Ask Alexander the Great and the Spartans. But you can’t have a bunch of those Christian generals risk showing their pecker in the shower to someone who might not like the opposite sex! No, sir. Jesus doesn’t approve of fags killing in the name of a flag. Only heteros are allowed to kill for Jesus! If Jesus’ approval of behavior is the appropriate standard? All those homophobic generals would be working at Pep Boys instead of suckling the public nipple.

  4. Yes, the silence from Obama supporters on his complete abandonment of his campaign promises cited above by Prof. Turley is deafening. On HuffPo and other blogs, they just won’t accept these FACTS.

  5. @Buddha: So I guess what Obama is saying is that tradition is more important than the lives or careers of soldiers, and more important than the 1st or 4th amendments to the Constitution. Apparently the tradition of Presidential immunity for all crimes is thriving as well. (But not sex crimes, those are still verboten).

  6. To take the contrarian view, perhaps Obama believes

    1. He should wait until the military’s recommendation before doing anything

    2. Repeal of DADT by Congressional action will come sooner than relying on the slog through the digestive track of a 40 foot anaconda (a/k/a appealing to the SCOTUS)

    Also, I know this case has tremendous symbolism for everyone, but she’s just a district court judge. Her injunctions have no effect (due to lack of jurisdiction) outside her own district, certainly not over the entire armed forces of the US.

  7. DADT Conflict Explained: Why Obama Administration Lawyers Fight For A DADT Policy Obama Opposes

    “WASHINGTON — President Barack Obama opposes the Pentagon’s “don’t ask, don’t tell” policy on gays in the military, so why are Obama administration lawyers in court fighting to save it?

    The answer is one that perhaps only a lawyer could love: There is a long tradition that the Justice Department defends laws adopted by Congress and signed by a president, regardless of whether the president in office likes them.

    Kinda like them laws against treason, huh? You know. The Constitutionally defined crimes the previous administration isn’t being prosecuted for by the DOJ even though the Prez is against it.

    Guess which finger your “explanation” earned?

    You two-faced, double-standard espousing Washington bastards.

  8. The Court of Appeals for the Ninth Circuit just granted the stay of the District Court’s injunction pending the resolution of the appeal.

    The “Administration loses” headline should have been “loses one round” in heavyweight title bout that is scheduled for 15 rounds, winding up in the Supreme Court.

  9. I demand equal rights for heterosexuals in the military to be able to shower and bunk with strangers they are sexually attracted to.

    Heterosexuals unite! Insist men soldiers have the right to shower with the women.


  10. For heaven’s sake people, Obama is just one guy. We can be a force of millions if we organized. When pointing the finger at one, there’s three pointing back at you. Change begins with each of us deciding to organize for the change we want. Waiting for the right president to be elected isn’t working.

  11. @Bdaman: Same issue, France and the UK use the Euro, and do not have the individual authority to print more of them to pay their debts.

    However, they are like us in the respect that the rich have captured their governments; albeit I think possibly to a lesser extent than they have captured ours, but the big money is global.

    The USA can and does print money at will to pay its debts, or the interest on its debts. For a good essay on the troubles of the Euro, read George Soros (and yes, he’s making a fortune on it).


    We cannot end up like anybody in the EU. What we would LIKE to be, economically speaking, is Germany. The world leader in technology, the world leader in productivity, they have a robust factory system and employment, and this is primarily because their government insists upon all of these things and supports all of these things with tax policy and regulation. I don’t know all the details, but my understanding from native Germans with whom I am friendly is that is very difficult in Germany to ship jobs overseas for cheaper labor, next to impossible to cheat on your taxes, and very difficult for executives to rip off investors and pay themselves exorbitantly.

    In short, a strongly regulated market that encourages **fair** competition has produced one of the strongest economies on the planet, with a focus on producing the highest quality engineered products on the planet. I’ve heard the same unprompted advice from restaurant owners to construction workers to wet lab workers, if you can get a German-made model of some piece of equipment, BUY IT.

    Remember when that used to be us? Now we are in the remainders bin because nobody trusts us. Around the world people think US made products are shoddy, that Americans cut corners, they don’t enforce their regulations, they are only interested in profits. The criminality of our political system and the gutting of basic regulation of our businesses has consequences.

    The next time a free marketeer tells me we should let the market decide; I’ll point at Germany — The world market HAS decided, and it likes that model of regulated industry with government enforced fair play far better than it likes ours.

  12. Appeals Court Grants DADT Stay

    Less than 24 hours after a federal judge refused to block an injunction against “don’t ask, don’t tell,” the U.S. court of appeals for the ninth circuit has done so — at least temporarily.

    A three-judge panel with the ninth circuit ordered a stay requested by the Justice Department “temporarily in order to provide this court with an opportunity to consider fully the issues presented.” It is not clear if the ruling was unanimous or a split decision.

  13. We’ll never be Greece

    How bout France or the UK

    Chancellor George Osborne has unveiled the biggest UK spending cuts for decades, with welfare, councils and police budgets all hit.

    The pension age will rise sooner than expected, some incapacity benefits will be time limited and other money clawed back through changes to tax credits and housing benefit.

    Up to 500,000 public sector jobs could go by 2014-15 as a result of the cuts programme, according to the Office for Budgetary Responsibility.


  14. @Kay: If you believe your civil rights have been violated, I’d call the ACLU and try to get some advice, or at least a referral to a civil rights attorney that has done some pro bono work for them. You might be able to sue for damages, for all I know.

    That isn’t legal advice, I am not an attorney. I have a small amount of knowledge on patents and contracts, and typically just enough to know when I should see my lawyer!

    Good luck with your case.

  15. Dear Tony

    Thank you for your comment. The Federal Rules of Criminal Procedure Rule 42 were amended and define criminal contempt. They allow summary disposition if you disrupt a court room and the judge writes an order describing what you did. I didn’t do that. Anything else is supposed to be prosecuted as criminal contempt and probably means something like threatening to shoot the judge or bribing jurors. All those also have names of other crimes such as making threatening statements or obstruction of justice.

    In the Administrative Procedure Act it says that all procedure involving the government must be published. My appeal, which was dismissed yesterday, pointed out that the APA says a U.S. citizen can’t be disadvantaged by their government using unpublished procedure. That of course has applications to the discussion of military life.

  16. @Bdaman: I’m not pushing it, I am just sayin’. A lot of conservatives that have been convinced inflation and debt are bogeymen may not realize they are working against their own financial interests, and in favor of the financial interests of the rich that want to soak them. Most (or all) debt payments of the USA are just printed (or really, just numbers typed into a computer, no physical printing is necessary). We’ll never be Greece, because Greece isn’t allowed to just print more Euros.

    Greek debt is real, ours just represents a future tax on the assets of the rich which they wish to avoid.

  17. Tony C. where can I send my donation? seems like you got it all figured out. Tony C for president 🙂

    P.S. don’t let Buddha bother you. 1st and foremost he be one smart sumbich but he ain’t gots no teeth so his bark is worse than his bite.

    You da man Buddha, you know I would love you but dens dat would make me an Idolotrist with my wife. She wouldn’t like dat.

    Comin Honey

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