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Loading ...Study: Obama doesn’t need Congress to halt gay discharges
05.12.2009 11:36am EDT
(Santa Barbara, California) A new study by a team of military law experts asserts that President Obama has the legal authority to end gay discharges through an executive order.
The report, “How to End Don’t Ask, Don’t Tell: A Roadmap of Political, Legal, Regulatory, and Organizational Steps to Equal Treatment,” was sponsored by the Palm Center at the University of California, Santa Barbara .The release of the study follows a weekend TV interview where retired Marine Gen. James Jones, the President’s national security adviser, said there has been “preliminary” discussion on allowing gays and lesbians to serve openly in the military.
But Jones went on to say that it uncertain whether “don’t ask, don’t tell” will be overturned, even though Obama has said he wants it eliminated.
Many have argued that only Congress can lift the ban. But according to the Palm study, Congressional approval is not needed, suggesting Obama is playing politics.
“The administration does not want to move forward on this issue because of conservative opposition from both parties in Congress, and Congress does not want to move forward without a signal from the White House,” said Aaron Belkin , Director of the Palm Center and a study co-author.
“This study provides a recipe for breaking through the political deadlock, as well as a road map for military leaders once the civilians give the green light.”
There are three legal bases to the president’s authority, the report said.
First, Congress has already granted to the Commander in Chief the statutory authority to halt military separations under a law titled, “Authority of President to suspend certain laws relating to promotion, retirement, and separation.”
Under the law, the President may suspend any provision of law relating to promotion, retirement, or separation applicable to any member of the armed forces who the President determines is essential to the national security of the United States during a “period of national emergency.”
The statute specifically defines a “national emergency” as a time when “members of a reserve component are serving involuntarily on active duty.”
The second and third bases of presidential authority are contained within the “don’t ask, don’t tell” legislation itself the study said.
The law grants to the Defense Department authority to determine the process by which discharges will be carried out, saying they will proceed “under regulations prescribed by the Secretary of Defense, in accordance with procedures set forth in such regulation.”
Finally, the law calls for the discharge of service members if a finding of homosexuality is made, but it does not require that such a finding ever be made.
According to the study, these provisions mean that the Pentagon, not Congress, has the “authority to devise and implement the procedures under which those findings may be made.”
The White House has not commented on the study.
Since DADT was enacted more than 12,000 servicemembers have been dismissed when it was learned they are gay. According to statistics from the Servicemembers Legal Defense Network which advocates for gays in the military an average of two service members are dismissed under the law every day.
Rep. Ellen Tauscher (D-Calif.) has reintroduced legislation to repeal DADT. Tauscher’s bill attracted 148 co-sponsors last year. This year the bill has not been taken up at the committee level.
A poll released April 30 found that by 56-37 percent voters think the ban should be repealed.
HAVE YOU CALLED THE WHITEHOUSE TODAY? Please do for Lt. Choi and Lt. Tsao and all 12,500+ so far discharged.
This request was supported by Clifford Alexander last night on Rachel Maddow. … He is former Sec of Army, and 15 year friend of Obama…who says PRESSURE WORKS.
COMMENT LINE: (but you will get a very nice person)
1-202-456-1111
Sample Script:
I’m calling to ask the president not to fire Lieutenant Dan Choi – and to keep his promise to end “Don’t Ask, Don’t Tell.”
To STOP Implementin DADT, until it is repaled.
I am a [something about you: Iraq vet, gay/straight West Point/Annapolis/AFA grad, concerned citizen, brother/sister/father/mother/son/daughter/friend of a soldier/sailor/airman/marine…etc.]
Mr. Alexander said the more non-gays who call the better, e.g. friends, family of service people. Other concerned citizens.
CALL see if you can get 20 others to too!
We must get rid of DADT because it teaches prejudice and discrimination. Getting around it would help those in the service, but DADT must be repealed to remove the official stance that it is ok to discriminate. Get your representatives to act on repeal, and let Obama know he needs to get his administration in line and that he needs to lead.
Obama is continuing a failed and discriminatory policy. If he can’t disregard this law, then he’s no better than his two predessors.
“A poll released April 30 found that by 56-37 percent voters think the ban should be repealed.”
If a poll was taken, dont you think we would have an exact percentage? I’m only saying this because its anoying that the vote COULD be above half, but most likely is below half.
Has a poll been taken from those who are serving in the military to see what they think? My reason for asking this is because I know a few lesbians that are serving and had been either harassed or attacked by fellow officers and they feel that repeal of DADT would not be in their best interest. So I suppose my question is whether or not our gay and lesbian brothers and sisters want DADT or not because its not just gay freedoms we seek but protection as well.
@Alexander: The quote to which you refer is stating that 56% of those polled support a repeal of DADT, while only 37% of those polled did not. It might have been better to have written it out more clearly: “A poll released April 30 found that by 56% to 37%, voters supported a repeal of DADT.” Or something.
Meanwhile???
obama plans on having the first ever white house poetry slam… which is making good on a campaign promise he made… glad he can keep some promises and is taking care of the important things first and he’s not too busy to throw down some poetry. Pathetic.
Post Cards to the White House reminding president Obama to repeal DADT and DOMA will be needed in exaggerated numbers.
Although I believe Obama is doing a very good job in the overall… I won’t believe his support for the GLBT community is sincere until he does ONE concrete thing of real (not symbolic) importance in our direction. Repeal of DOMA, end DADT, help get ENDA passed, help get the Hate Crimes bill passed – etc. Up till now, like I feared, we’ve had a lot of words – but precious little in the way of action.
I’ll be basing my re-election vote of his ACTIONS, NOT his words. (And yes, I still wish Hillary had won).
Light up the White House phone lines. Call 202-456-1111 and tell them we want the president to stop firing qualified service members just because they are gay or lesbian. Stop it. Stop it now.
I agree, Chris Sullivan. He is spending too much time hiding behind congress on all issues related to LGBT citizens. He could, and should, take the leadership on urging them to lift DADT. What is he waiting for? I know same sex marriage is too hot to handle, but outright job discrimination by the federal government? That just doesn’t sound all that controversial to me, especially since a majority of Americans agree that the ban should be lifted.
We must let Obama hear us. If you don’t want to telephone the White House, follow Veronica’s advice and send a postcard. The address is:
The White House
1600 Pennsylvania Avenue NW
Washington, DC 20500
Or, send an email via http://www.whitehouse.gov/CONTACT/
I have phoned, I have e-mailed, I have snail-mailed the following:
Dear Mr. President,
I am a retired teacher, living in rural south-central Kentucky, who is deeply disappointed that our government, by authority of the infamous DADT regulation, continues to persecute its brave men and women in military service with unfair dishonorable discharge and destruction of career.
A new study by a team of military law experts, sponsored by the Palm Center at the University of California, Santa Barbara, asserts that the President has the legal authority to end gay discharges through an executive order.
And, in as much as it is common knowledge that the military apparatus of those nations which now permit their gay and lesbian citizens to serve openly in their armed forces has suffered no crisis or upheaval adversely affecting either morale or mission effectiveness, there is no legitimately compelling reason for this shameful persecution of U.S. military personnel to continue.
I call upon you, Mr. President, to remember the painful travails of legal discrimination that your own persecuted race suffered here just 40 years ago, to stop dithering over this issue, to do the moral and equitable thing and put an end to this outrageous unfairness that blights America’s promise of Equality and Justice for All.
OKAY: Latest news:
1) so many calls the callers were asked to leave emails. Especially if you want to make COMMENTS…e.g. VENT
2) go to http://www.whithouse.gov Go to CONTACT US (Right side toodbar) .. You need to leave name, email and zip code.
This is a POLICY Question: e.g. the President can change implementation with his pen!
Tell them who you are and why you want him to.
You get 5000 characters…Like I say you can say MORE this way.
ALSO.. If what you really want is DADT repealed, there is a bill in Congress to do the the MREA (Military Readiness Enhancement Act)…
Call House Armed Services Committee Majority staff:
@ 202-225-4151.
Urge them to get a hearing to pass the bill.
I also just sent a letter to the president expressing the same points listed so well by Jaeger. We shall see if there are any positive results.
A quick point – under DADT, the soldiers do receive honorable discharges, though they are still clearly unfair, discriminatory discharges. Under the original ban, soldiers were subjected to dishonorable discharges. You might want to omit the word “dishonorable.”