Implementation-Policy Transition

Marine Defies White House on Gay Troops

Conway's apparent resistance may be a warning shot to the White House telegraphing arguments that opponents of repeal will invoke if the Senate holds hearings on "don't ask, don't tell."

Law Students Discuss Potential for Change

(This post submitted by Beth Hillman, J.D.) October 15th, 2009 in Cambridge, Mass., a “don’t ask/don’t tell” panel drew a standing-room-only crowd.

White House Doesn't Need Protection, Gay Troops Do

It was sad but not surprising to read the recent article in which suggested that the legislative process to repeal “don’t ask, don’t tell” is badly stalled.

Why Does Obama Use Executive Power for Everything But Gay Troops?

Under continued pressure from gay groups and those concerned with our national security...

Gathering Steam

(This post submitted by Beth Hillman) Just as the challenges that U.S. troops face on the ground in Afghanistan and Iraq continue to change, the political climate surrounding “don’t ask/don’t tell” seems unsettled

A Self Inflicted Wound

How and Why Gays Give the White House a Free Pass on “Don’t Ask, Don’t Tell”
July 28, 2009
Aaron Belkin
Palm Center

Click here to download a pdf of the entire report.

Executive summary
Throughout the winter and spring of 2009, attempts to repeal “don’t ask, don’t tell” remained stalled.  Although candidate Obama had suggested that efforts to repeal the ban would begin when he became President, rhetoric shifted immediately after the inauguration as the White House spoke of the need to delay repeal initiatives, and then began to use conditional language about whether, not when, the administration would focus on repeal.  Major gay rights groups who had taken candidate Obama at his word became increasingly frustrated at the lack of action; senior Congressional spokespersons confirmed that consideration of repeal was not imminent; and media coverage of the issue softened. 

All of this changed in May, 2009 when a proposal was introduced in the public domain outlining a new, two-part strategy which would begin with an executive order suspending “don’t ask, don’t tell” followed by legislative repeal at a subsequent time.  The proposal included a legal analysis showing that the President has stroke-of-the-pen authority to suspend the ban.  The tone of media coverage shifted immediately once activists and journalists realized that the President could suspend “don’t ask, don’t tell”, and the White House was put on the defensive. 

As momentum for executive action increased, however, a network of gay and gay-friendly activists, journalists and politicos worked to derail the possibility of a suspension of the ban.  This policy analysis advances three points about these efforts to derail an executive order and focus exclusively on legislative repeal of “don’t ask, don’t tell.”  In particular, it (1) explains the strategic misperceptions of those who seek to focus exclusively on legislative repeal including the flawed notion that the legislative strategy alone can work; (2) describes the consequences of efforts to block consideration of the two-part strategy (executive order first, legislative repeal second); and (3) suggests why a renewed emphasis on a two-part strategy is the most effective way forward.

Secretary of Defense Authority to Implement “Don't Ask, Don’t Tell” in a Manner Consistent With National Security

July 6, 2009
Diane H. Mazur
Palm Center

Download the study here.


In May, the Palm Center released its study, “How to End ‘Don’t Ask, Don’t Tell’: A Roadmap of Political, Legal, Regulatory, and Organizational Steps to Equal Treatment.” The document showed that the President has the legal authority to issue an executive order halting all discharges under the homosexual conduct policy governed by 10 U.S.C. § 654.

The release of the study touched off a debate over how the application or enforcement of “don’t ask, don’t tell” might be modified in ways that are consistent with both federal law and national security.

In June, Secretary of Defense Robert Gates announced that he had asked his general counsel to explore what flexibility the law allows for, and specifically if there is “a more humane way to apply the law until the law gets changed.” This legal memo explains the authority granted to the Secretary of Defense to modify how “don’t ask, don’t tell” is applied, and outlines several options for doing so.


Table of Contents:

I.  Introduction
II.  Authority Granted to the Secretary of Defense by 10 U.S.C. § 654 (Policy  Concerning Homosexuality in the Armed Forces) and by Department of Defense Regulations
III.  Actions the Secretary of Defense Could Take to Limit Enforcement of “Don’t Ask, Don’t Tell” and Assessment of Likely Consequences
IV.  Conclusion


Thank You Congress

Cross posted on June 22, 2009 at The Huffington Post. Finally, Washington is starting to wake up from its 15-year slumber concerning gays in the military.

Pentagon Can Implement Gay Ban Differently

On the heels of yesterday’s announcement from Secretary Gates, my colleagues with expertise in military law are telling me that the Secretary of Defense does indeed have room to implement the gay ban differently.

Stop-Loss: The Solution to Obama’s DADT Conundrum

In asking the court U.S. Supreme Court not to hear the appeal of James Pietrangelo, an Army Captain who was fired under DADT, the White House put itself into a tricky position.
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