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Confusion surrounds flip-flop on military’s 'don't ask, don't tell' law

By LEO SHANE III | STARS AND STRIPES Published: October 21, 2010

WASHINGTON — On Monday, openly gay individuals could not enlist in the military because of the “don’t ask, don’t tell” law.

On Tuesday, a federal judge struck down the law, and the Pentagon announced they could sign up.

By Wednesday, the law was back in force again, thanks to a higher court’s freeze of that injunction.

Throughout the week, White House officials insisted that they want to get rid of the controversial 17-year-old law -- but not through the courts.

Repeal supporters and opponents are now criticizing the widespread uncertainty surrounding the future of “don’t ask, don’t tell” and questioning the meaning of this week’s developments.

Right now, here’s what is clear:

When will this end?

Not soon. The Log Cabin Republicans, who brought the original court case that prompted the injunction, have until Monday to argue why the Ninth Circuit Court of Appeals should block enforcement of “don’t ask, don’t tell” while the appeal proceeds.

Arguments in that appeal won’t take place until next spring at the earliest. So, if the court rules against the Log Cabin Republicans, the ban on openly gay troops will remain in effect until then -– unless a legislative alternative passes through Congress next month.

Why won’t the White House just get rid of the ban?

President Barack Obama insists that Congress needs to repeal the law, since it passed the policy in 1993.

Gay rights groups have argued that the president could effectively erase the law through an executive order or by not appealing the Log Cabin Republicans’ case, but Obama has rejected those options. Pentagon leaders have also said they prefer a repeal measure pending in Congress to any court actions.

In May, the House passed a bill that would dump the ban on openly gay troops next spring, but the legislation stalled in the Senate last month. The Senate might still bring up the issue again after the November elections.

Why do the courts have a say in this anyway?

Conservative groups that oppose a repeal are asking the same question. Elaine Donnelly, president of the Center for Military Readiness, said the judge who issued the injunction “seems to have appointed herself supreme judicial commander of the U.S. military.”

But in her ruling, U.S. District Court Justice Virginia Phillips found the “don’t ask, don’t tell” law to be discriminatory and unconstitutional, mandating judicial intervention. Now the appeals court (and eventually the Supreme Court) will have to decide whether it agrees.

Shouldn’t the military have a say in this?

They have, in a way. The Pentagon is expected by Dec. 1 to release results of a year-long working group study into the issue, including results from surveys of 110,000 servicemembers and several thousand military spouses on the potential impact of a repeal.

But Defense Secretary Robert Gates has said those surveys will help guide how a repeal is implemented, not determine whether a repeal should take place.

Conservative opponents blasted those comments as writing the study’s conclusions before the research is done. Gay rights groups have argued that military personnel don’t get to vote on other policy issues, and shouldn’t get to vote on this one.

What about the gays who enlisted Tuesday?

The Defense Department late Thursday still couldn’t say exactly what consequences those recruits might face, but emphasized that “don’t ask, don’t tell” is back in effect now, and will be enforced. The same goes for any servicemembers who came out or were outed in that short window. They could face legal action and possible dismissal.

Both gay rights groups and Pentagon officials had advised against any dramatic life changes in the midst of the legal uncertainty, although it’s unclear how many troops in remote areas may have missed that guidance.

So what’s next?

Early next week, the Ninth Circuit will decide whether to let the “don’t ask, don’t tell” injunction stand for the next few months. Although the case could get quickly appealed to the Supreme Court, next week’s ruling will likely be the final legal say on the matter until spring.

The Defense Department’s working group study will quickly become the focus of debate on the issue on its release next month.

Gay rights groups are hopeful that the results will spur the Senate to pass the pending repeal legislation before the end of the year. But if Republican opponents take over one or both chambers of Congress in the election, they’ll fight to push any major debates -- including this one -- into the new session next year.

Meanwhile, the Pentagon is expected issue a new set of memos this week for all servicemembers, clarifying the legal status of the “don’t ask, don’t tell” law and the penalties troops who violate it could face.

shanel@stripes.osd.mil