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Entries in Judge Virginia Phillips (3)

Thursday
Oct142010

'Don't Ask, Don't Tell': Pentagon Halts Enforcement as Justice Department Seeks Stay of Injunction

Photo Courtesy - Getty Images(WASHINGTON) -- The Pentagon Thursday instructed military lawyers to halt all open investigations and pending discharges of gay and lesbian service members under the "don't ask, don't tell" policy, which has prohibited them from openly serving.

The notice from the Defense Department's general counsel to service judge advocates around the world comes in response to a judgment by Federal Judge Virginia Phillips Tuesday ordering an immediate, worldwide end to the policy's enforcement.

Phillips first ruled Sept. 10 that the policy is unconstitutional.

"The [Defense] Department will abide by the terms in the court's ruling, effective as of the time and date of the ruling," said Pentagon spokesman Col. David Lapan.

Without a stay, "don't ask, don't tell" will no longer remain the law.

The Justice Department, which has defended the policy in court, filed an emergency request with Phillips, asking her to stay the worldwide injunction against the policy pending an appeal.

"The precipitous changes to military policy required by the court's injunction would result in a host of significant and immediate harms to the recognized public interest in ensuring that the nation has strong and effective military operations," government lawyers wrote.

Christian Berle, deputy executive director of the Log Cabin Republicans, a gay and lesbian advocacy group, said he was not surprised by the administration's request, but was still disappointed. "If this stay is granted, justice will be delayed, but it will not be denied," he said.

Dan Woods, the plaintiffs' attorney, vowed to fight any appeal.  "We will fight vigorously to defend Judge Phillips' lengthy, well-reasoned decision," he said.  Gay rights advocates had anticipated that the administration might appeal the ruling and have advised caution to gay and lesbian service members currently serving.

"We're basically recommending that service members not change anything and operate as if DADT were still in effect," said John Alexander Nicholson, who is a plaintiff in the case and runs Service Members United, one of the largest advocacy groups in the country for gay and lesbian troops.

If the policy is reinstated, some pending investigations could also be allowed to continue.

"Right now, there's still a lot that could happen," said Drew Woodmansee, an attorney representing one of the highest-ranking military officers facing discharge under "don't ask, don't tell," Lt. Col. Victor Fehrenbach.  "My hope is that the government will see the writing on the wall and do the right thing and decide to let Col. Fehrenbach stay in, but until they do that I feel we can't let down our guard."

White House press secretary Robert Gibbs has reiterated President Obama's belief that the policy is "unjust" and "detrimental to our national security," as well as his promise that it will end.  He declined to say whether the president found it unconstitutional.

The best way to end the policy is for the "Senate to follow the lead of the House of Representatives," Gibbs said Wednesday.  "This is a policy that is going to end.  It's not whether it will end.  But the process by which it will."

The House approved a repeal as part of the annual defense budget earlier this year, but the Senate failed to approve the measure in a vote last month.

"I feel strongly this is an action that needs to be taken by the Congress and that it is an action that requires careful preparation, and a lot of training and a lot of revision of regulation," Defense Secretary Robert Gates told reporters on a flight to Brussels, Belgium on Wednesday.

The administration's position has not been well received by many advocates for gay and lesbian rights, who insist a repeal should not be put on hold.

"We had hoped that if President Obama truly believed that 'don't ask, don't tell' is wrong, particularly because it violates the First and Fifth Amendments, that he would use Judge Phillips' ruling as a means to end the policy," said Christian Berle with the Log Cabin Republicans, a conservative gay rights group.

"It is really confusing and also heartbreaking for these service members who continue to put themselves in harm's way in service to their country," said Michael Cole, spokesman for the Human Rights Campaign.  "Instead of the policy being repealed we've gone through seemingly endless legal wrangling and legislative posturing that has not served our national security interests."

The administration has said it is obliged to defend the policy in court, and Obama has said he would prefer it to be repealed legislatively.

"The Justice Department is defending the statute, as it traditionally does when acts of Congress are challenged," said Justice Department spokeswoman Tracy Schmaler in a statement.

The case was brought in 2004 by the Log Cabin Republicans, which argued that the military's 17-year-old policy violates gay service members' rights to free speech, open association and due process.  Judge Phillips agreed.

The Log Cabin Republicans estimate that 13,500 gay military service members have been ousted under the rules since 1994.

Phillips' decision marked the first time a federal judge had found the law unconstitutional on the grounds of due process and First Amendment violations.

Seventy-five percent of Americans say gays who disclose their sexual orientation should be allowed to serve in the military, according to a recent ABC News/Washington Post poll, up from 44 percent 17 years ago.

Copyright 2010 ABC News Radio

Tuesday
Oct122010

Court Orders Immediate "Don't Ask, Don't Tell" Injunction

Photo Courtesy - ABC News Radio(WASHINGTON) -- U.S. District Judge Virginia Phillips on Tuesday ordered a permanent injunction barring enforcement of the military's "don't ask, don't tell" policy, effective immediately. 

The court order, which would affect all service members abroad and in the United States, also requires the government to suspend and discontinue all pending discharge proceedings and investigation under "don't ask, don't tell."

"We have just learned of this ruling.  We are now studying it and will be in consultation with the Department of Justice," said Department of Defense spokesperson, Cynthia Smith.

The government will have 60 days to file an appeal.

Copyright 2010 ABC News Radio

Friday
Sep242010

Obama Administration Angers Gay Groups With Defense of 'Don't Ask, Don't Tell'

Photo Courtesy -- ABC News.(WASHINGTON) -- The Justice Department has asked a federal judge in California not to issue an immediate injunction against the U.S. military's Don't Ask, Don't Tell policy, despite President Obama's opposition to the policy and belief it should be overturned.

In a court filing Thursday night, government lawyers asked U.S. District Court Judge Virginia Phillips to grant them a "reasonable" amount of time to consider an injunction. Phillips ruled Sept. 9 that the ban on openly gay and lesbian men and women serving in the military was unconstitutional and should be ended immediately.

"A court should not compel the executive to implement an immediate cessation of the 17-year policy without regard for any effect such an abrupt change might have on the military's option, particularly at a time when the military is engaged in combat operations around the globe," the Justice Department wrote to Phillips.  Phillips is now deciding whether an injunction should take effect.  The case has put the Obama administration in a political bind; it's caught between a duty to defend established law and a promise to have the law overturned. Obama has said he prefers the policy to be resolved legislatively and after the Defense Department completes its review in December.

"This filing in no way diminishes the president's firm commitment to achieve a legislative repeal of DADT," said White House press secretary Robert Gibbs in a statement. "Indeed, it clearly shows why Congress must act to end this misguided policy."

Copyright 2010 ABC News Radio. 







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