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Belatedly, Pentagon tells services not to enforce DADT

UPDATE, 3:35pm -- Pentagon officials just issued this statement to the press, announcing that they've instructed service officials to abide by the terms of the court injunction halting enforcement of the "don't ask, don't tell" law:

Earlier today, the Staff Judge Advocate Generals from the Military Services, in consultation with the OSD Office of General Counsel, sent to their Service Staff Judge Advocate counterparts in the field an e-mail informing them of the ruling by Judge Virginia Phillips of the Central District of California, issuing an injunction barring the enforcement or application of 10 USC 654, commonly known as the "Don't Ask, Don't Tell" statute. The e-mail noted that the US Government is contemplating whether to appeal and to seek a stay of the injunction.

The Department of Defense will of course obey the law, and the e-mail noted that, in the meantime, the Department will abide by the terms in the court's ruling, effective as of the time and date of the ruling.

Read the original post on the Pentagon's slow response to the court order below:

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ARLINGTON, Va. – While the Pentagon considers a judge’s order to be a “de facto” moratorium on discharges of gay military troops, the Defense Department has given no instruction to its military commanders to halt any current “don’t ask, don’t tell” proceedings or investigations. Nor has it stated whether gay servicemembers are safe to reveal their sexuality.

“The judge’s order is a written stoppage of those [don’t ask, don’t tell] proceedings,” said Pentagon spokesman Marine Col. David Lapan, two days after a California district court ordered the military to stop enforcing the controversial ban on openly gay servicemembers. 

But without formal guidance, the Pentagon has no way to ensure the military is following the court's order. “I can’t guarantee anything,” Lapan conceded.

The Defense Department’s general counsel office is deliberating how to proceed following the injunction, as is the Department of Justice and the White House. Several news outlets have reported that the Obama administration is expected to ask the judge for a stay to the injunction while DOJ appeals the court’s ruling that “don’t ask, don’t tell” is unconstitutional. Defense Secretary Robert Gates on Wednesday said he still wants Congress to be the source of ending the law, via a repeal, and for the adminisration to wait for the results of a survey of the military that was completed last month.

Legal scholars are questioning whether the judge had the power to order the entire military-wide halt.

Lapan said the Pentagon trusts commanders and judge advocate generals, or military lawyers, to know what to do without formal notification. “We give a lot of authority and responsibility to our commanders to make the best decisions possible,” said Lapan. “It’s obviously well-known that the injunction was issued and we’d anticipate that commanders would exercise judgment until they receive further guidance.”

The military does not require its global network of bases, installations, and courts to report to the Pentagon how many "don’t ask, don’t tell" proceedings are ongoing or their status, Lapan said. Without a formal guidance from Washington, Lapan conceded, there is no way to know that every military lawyer in the field knew to halt such proceedings.

“It’s reasonable to expect they were aware,” he said.

Advocacy groups continue to sound an alarm of caution both for gay servicemembers contemplating revealing their sexual orientation.

“This interim period is dangerous,” said gay rights activist and U.S. Army veteran Aubry Sarvis, of the Servicemembers Legal Defense Network, in a statement. “We need to put the safety and well-being of gay service members first, and become realistic.”

“We will continue to urge gay and lesbian service members to not come out; it is not safe to do so,” he added. 

The Pentagon has offered no indication how long it may be before the administration will announce its intentions.

“I would’ve hoped that I had something more to tell you today,” Lapan said.

Related: ‘DADT’ ruling gives White House a legal quandary

 

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