Obama seeks to limit ruling on gays in military??? WTF?!?!?

[TheIdiot]

SAN FRANCISCO | Thu Sep 23, 2010 7:20pm EDT

SAN FRANCISCO (Reuters) - The Obama administration sought on Thursday to limit the reach of a recent court decision striking down the U.S. military rule that bans openly gay people from serving in the Armed Forces.

The administration's stance, filed in U.S. District Court in California, comes two days after the U.S. Senate blocked legislation that would have repealed the policy known as "don't ask, don't tell."

Obama has said he supports repeal, which has been a key political issue for the gay and lesbian community ahead of congressional elections on November 2.

Many Republicans fiercely oppose changing the policy.

http://www.reuters.com/article/idUSTRE68M5X220100923

[TheIdiot]

1. i mean, WTF?!?!?! n/f

[MineralMan]

2. Replying to your own thread?

Actually, it's a procedural challenge, seeking to limit the application of the injunction to just the group that filed the case. By doing so, they keep other cases and possibilities open. It's pretty technical, and you really need some law education to understand what's going on.

It's explained in some of the other threads on the subject.

[abelenkpe]

6. Awwwww

I reply to my own posts on facebook all the time. Is that weird? It's like an addendum.

Thanks for clarifying this though. It does seem crazy. Still hoping for the end of DADT. :)

[Stinky The Clown]

8. Self-delete

[TheIdiot]

11. be my guest. n/f

[TheIdiot]

10. OK... thanx... it would have been nice

if Reuters had even hinted at that in the article.

Like there isn't enuff shit going on out there to piss a guy off!

[Tx4obama]

3. It is always good to find out the 'why' before jumping to conclusions.

Excerpt:

In a 14-page brief, Justice Department attorneys argued that a permanent injunction against enforcing the 17-year-old law — one supported by Log Cabin Republicans, which successfully challenged DADT in federal court and has argued for an immediate halt of DADT enforcement throughout the armed forces — would be "untenable."

"Any injunction in this case must be limited to plaintiff LCR and the claims it asserts on behalf of its members – and cannot extend to non-parties – plaintiff’s requested world-wide injunction of the statute fails as a threshold matter," assistant U.S. attorney Paul Freeborne wrote.

Among the government’s arguments, Freeborne wrote that an injunction would preclude the government both from litigating other legal challenges to DADT and considering the terms of a stay barring discharges of gay and lesbian service members.

http://www.advocate.com/News/Daily_News/2010/09/23/DOJ_Counters_Log_Cabin_to_Keep_DADT/

[BlueCheese]

18. I really don't understand the government's reasoning...

Why shouldn't an injunction apply to everyone, not just Log Cabin Republicans? For what it's worth, the linked article also says that both the lawyer for the Log Cabin Republicans and the director of Servicemembers United think that the government's position is hogwash.

[Unvanguard]

26. Their argument is that the court only has authority to grant relief to the parties.

LCR members are parties to the case; non-LCR members are not.

[Unvanguard]

4. What matters is whether they appeal.

In terms of executive action to end the policy, not having a nationwide injunction might actually be better, because it will give the administration some time to maneuver with the military, instead of immediately being forced to confront the pressing question of whether or not to appeal for a stay.

Of course, given the way the Obama Administration has generally behaved in these cases, that is probably wishful thinking. (Then again, I can't imagine a nationwide injunction not being stayed, so it may not make much difference. Like the Prop. 8 trial, if Congress does nothing, the ultimate result of this case will depend on what higher federal courts do.)

[Tx4obama]

5. You're correct. An objection to the injuction and an appeal are two separate things.

I believe the DOJ has 60 days to file an actual appeal, but if Congress passes the Defense Appropriations bill which has the DADT repeal included before then then the above lawsuit will be of no significance.

[ruggerson]

9. how could that happen? It already got voted down

and the earliest it will be brought up again is in December, during the lame duck session and AFTER the Pentagon "review' and AFTER the deadline for appeal in this case.

[Tx4obama]

12. Who said December?

Cloture didn't get enough votes on September 21st,
the Senate had it on their calendar again the NEXT DAY September 22nd.
Look on this link at Wednesday September 22nd http://democrats.senate.gov/calendar/2010-09.html
It says: Following morning business, the Senate will resume consideration of the motion to proceed to S.3454, the Department of Defense Authorization bill.

It can be put back on the calendar and voted on at anytime.

Edited to add: The wording of the DADT repeal in the Defense bill states that it would not go into effect until after the survey has been concluded and the military heads sign off on it, etc.
So there is no reason that the Defense bill/DADT repeal can't be voted on and passed now ;)

[ruggerson]

14. Did they resume consideration of it yesterday?

They are not going to because the outcome would not be any different. A number of Senators indicated they wouldn't vote for repeal until the "review" was complete. Which is in December.

[Tx4obama]

16. Read my 'edit' in comment #12. n/t

[ruggerson]

19. Yes, but the Senators ignored that wording

and voted against it anyway. Snowe in particular said she wanted to wait until the "review" was complete.

[ruggerson]

7. Did you read the brief?

Do you seriously believe they are not going to appeal this after reading it? They make the specific argument that if this injunction is not narrowed by the judge to only the plaintiffs, it will make it more difficult, if not impossible, for the DOJ to litigate OTHER cases around the country. Meaning, they want to live another day to defend DADT elsewhere. They want to keep defending the statute as constitutional.

There is no interpretation of this brief logically that would be compatible with the words of the administration. Gibbs is saying one thing - the lawyers are doing the opposite.

[Tx4obama]

13. I doubt the Obama administration will appeal. See why I think so below

The defense (government) didn't even put up a real defense during the trial
They called no witnesses and the only thing they did was submit the history of DADT to the court.
You can find that stated in the ruling here: http://www.politico.com/static/PPM170_100909_logcabin.html

[ruggerson]

15. Then why the motion to limit injuctive relief?

[Tx4obama]

17. Read comment #3. They said why. n/t

[ruggerson]

20. it doesn't make any sense whatsoever

they are arguing to limit injunctive relief so that they can perhaps kill the statute in some other fashion down the road at some unspecified time?

NOT FIGHTING broad relief would accomplish that right now. At least for the time being.

[Unvanguard]

24. Their (ultimately weak) argument is about "how."

They're not saying "If you kill the statute, the statute can't be killed"; they're saying, "We can kill the statute better than you can."

I see no reason whatsoever to suppose that delay or a "review" process is actually necessary, and I suspect the judge will think the same way, judging by her opinion. But the government's position is at least consistent with their current political path toward DADT repeal, which (for political reasons) relies on the review process.

[ruggerson]

27. yes, this threw a wrench into their timetable

but what's interesting is they've long claimed that the reason they won't halt the discharges with an order from the CIC is because that would be a "temporary" fix (as if it's inconceivable to attack the law on two or three separate tracks simultaneously.)

The courts however, are as constitutionally equipped to strike down bad law as the legislature is. The administration could simply let this ruling stand and complicate matters for those opposed to repeal instead of consistently and repeatedly complicating matters for those who advocate for a quick death of this statute.

[Unvanguard]

28. I thought Biden said it was a political compromise.

That's been my reading, it was a sop they threw to the military to get its cooperation, so they could bring recalcitrant Senators in line.

You're right that this complicates that argument, though: what need for compromise if you can end it permanently now by declining to appeal? It's probably politics; this administration is not particularly audacious, especially not on gay rights issues, and wanting to keep to their cautious political strategy rather than antagonize the military seems in its character. (More generously, there is also the benefit that a cooperative military is likely to comply more assiduously with repeal than one whose hand is forced.)

[ruggerson]

29. well if it was, they got royally screwed

the current legislation, with the compromise language, doesn't go into effect until after a review process and gives the WH and the Pentagon plenty of time and leeway to implement the repeal as they see fit. The legislation voted ono Tuesday WAS the compromise. Gates had agitated for a vote next year, advocates for repeal and their allie in congress were worried that if the midtermswent badly, the repeal would be dead in the water. They met in the WH and this is the bill that emerged. As it stands now, a lame duck vote may very well be the last shot. But THIS vote, the one they took on Tuesday, was the one Biden was referring to as the compromise. He said they had the votes. They obviously didn't.

[Unvanguard]

32. The compromise happened a long time before Tuesday's vote.

It was apparent from last spring, with the military leadership both advocating for repeal and discouraging any immediate halt to the policy, and the need for it (at least for legislative repeal) was confirmed by the decisive effect Gates' reluctant acceptance of early Congressional action had on the committee vote last May.

You are right, though, that the last chance for the strategy is the lame-duck session, which leaves legislative repeal with questionable prospects.

[ruggerson]

33. yes, but the Senate vote was on the same bill that passed the House

Tuesday's vote was the compromise language - same bill - the one Gates signed off on. The one Biden said they had the votes for, after much arm twisting and phone calling. Either the WH is not very good at this or someone is being disingenuous.

[Unvanguard]

23. Read it just now.

I have no doubt that they don't want a nationwide injunction--or, at minimum, they don't want to be perceived as wanting a nationwide injunction. Obama's repeal strategy depends on cooperating with the military, which clearly wants this done on their own time and in their own way. (The merit of that strategy, of course, looks increasingly dubious.)

I don't know if they would appeal a ruling declaring DADT unconstitutional that was not accompanied by a nationwide injunction. That was my point in my last post: if the administration wants to get rid of DADT by executive action, they might have an easier time doing it without an injunction than with one, because it gives them some time to maneuver with the military.

As for the language you mention, I don't think it is determinative: it fits neatly with their general argument that a nationwide injunction would be an overextension of the court's power, and may simply serve to buttress that point rather than demonstrate a long-term intention to continue defending DADT. One indicator that this is what's going on is the tension between that argument and another argument of theirs that the political repeal process is ongoing and should not be displaced by court order; if DADT is repealed, obviously the legal issues surrounding it won't continue to percolate. I think it is first and foremost part of their resistance to a nationwide injunction rather than a definitive indicator of their future intent.

To be absolutely clear, as (I think) I implied in my last post, I have my doubts that Obama will in fact use his powers as executive to end DADT; I am just saying that this brief does not foreclose the possibility.

[annabanana]

21. Rachel and her guest (from the Advocate) went through

this pretty thoroughly on the Wed night show.. . The procedure proceeds.

[pgodbold]

22. I once loved that man. Now I'm kinda looking forward to the supoenas and investigations. They will

crush him like he is doing to me.

[FrenchieCat]

25. Did you bother to read the thread?

Or are you voting with the Repugs this midterm election....
cause that's what is sounds like you are saying.

[pgodbold]

35. I have never voted for a republican in my life. I never will. That

however won't stop me from gleaning some pleasure watching captian bipartisan getting fucked after the fucking he's given the gay folks.

[Better Believe It]

30. Why does President Obama want the judge to refrain from applying the anti-discrimination ruling?

"U.S. District Judge Virginia Phillips declared the "don't ask, don't tell" policy unconstitutional earlier this month. But Obama's lawyers asked in Thursday's motion that Phillips refrain from applying her ruling nationally, or to the military overseas."

http://www.reuters.com/article/idUSTRE68M5X220100923

Why? The ban on gays is unconstitutional .... period. CASE CLOSED.

[gscraig]

31. making compromises

It is fascinating to see the difference between candidates and those serving in office. Once in office, it becomes all about what is practical, rather than being about ideals. Seeing what Obama has chosen to push, and what he has chosen to let slide, really says a lot about what actual priorities he has.

[Tx4obama]

34. STATEMENT FROM THE WHITE HOUSE

Statement: Gibbs on Justice Department filing in Log Cabin Republicans v. United States of America September 23, 2010

Today, the Department of Justice made a filing in a legal challenge to the Don't Ask, Don't tell (DADT) policy, as it traditionally does when acts of Congress are challenged. This filing in no way diminishes the President's firm commitment to achieve a legislative repeal of DADT – indeed, it clearly shows why Congress must act to end this misguided policy. The President was disappointed earlier this week when a majority of the Senate was willing to proceed with National Defense Authorization Act, but political posturing created a 60 vote threshold. The President spoke out against DADT in his first State of the Union Address, and the Secretary of Defense and the Chairman of the Joint Chiefs have both testified in support of repeal. And the Department of Defense continues to work on a plan on how to implement repeal. The President, along with his Administration, will continue to work with the Senate Leadership to achieve a legislative repeal of DADT as outlined in the NDAA this fall.

http://thepage.time.com/statement-gibbs-on-justice-department-filing-in-log-cabin-republicans-v-united-states-of-america-september-23-2010/

[Vinca]

36. Baloney - they should set a precedent and not file. Let it go.

[piratefish08]

37. here comes the eleven dimensional chess defenders.....