USA — Injunction Stands During ‘Don’t Ask, Don’t Tell’ Appeal

WASHINGTON, Oct. 15, 2010 — The Defense Depart­ment will abide by the injunc­tion issued by a Cal­i­for­nia judge on the “Don’t Ask, Don’t Tell” law while the Jus­tice Depart­ment appeals the deci­sion, DOD offi­cials said here today.

In a mem­o­ran­dum to ser­vice sec­re­taries, Clif­ford L. Stan­ley, the under­sec­re­tary of defense for per­son­nel and readi­ness, said the depart­ment “will abide by the terms of the injunc­tion.”

Judge Vir­ginia Phillips issued the injunc­tion Oct. 12. It grew from her Sept. 9 deci­sion that the Don’t Ask, Don’t Tell law is uncon­sti­tu­tion­al, vio­lat­ing the 1st and 5th amend­ments.

Her injunc­tion ordered the gov­ern­ment, “imme­di­ate­ly to sus­pend and dis­con­tin­ue any inves­ti­ga­tion, or dis­charge, sep­a­ra­tion or oth­er pro­ceed­ing that may have com­menced under the ‘Don’t Ask, Don’t Tell’ Act or its imple­ment­ing reg­u­la­tions.”

The injunc­tion and appeal have caused uncer­tain­ty for ser­vice­mem­bers about the law, Stan­ley wrote. “We note for ser­vice­mem­bers that alter­ing their per­son­al con­duct in this legal­ly uncer­tain envi­ron­ment may have adverse con­se­quences for them­selves or oth­ers should the court’s deci­sion be reversed,” the under­sec­re­tary said.

The depart­ment wants any changes to the law to be stud­ied, Stan­ley said. Gen. Carter F. Ham, com­man­der of U.S. Army Europe, and Jeh John­son, the department’s gen­er­al coun­sel, are co-chair­ing a work­ing group that is study­ing the impli­ca­tions of changes in the law.

The work­ing group has sur­veyed hun­dreds of thou­sands of ser­vice­mem­bers and their fam­i­lies for their opin­ions on how to best move for­ward. It is to present its report to Defense Sec­re­tary Robert M. Gates on Dec. 1.

“Requir­ing the depart­ment to cease all enforce­ment of ‘Don’t Ask, Don’t Tell,’ imme­di­ate­ly and world­wide, will cause sig­nif­i­cant dis­rup­tions to the force in the short term and, in the long term, would like­ly under­mine the effec­tive­ness of any tran­si­tion to accept­ing open ser­vice by gays and les­bians in the event the law is repealed or elim­i­nat­ed,” Stan­ley said in a depo­si­tion filed with the court yes­ter­day.

The depart­ment will need to edu­cate and train the force on any changes to the law, and will need to revise dozens of instruc­tions, reg­u­la­tions and poli­cies, Stan­ley said. With tens of thou­sands of ser­vice­mem­bers in Iraq and Afghanistan, this train­ing can­not be pro­vid­ed instan­ta­neous­ly, he said.

“The sec­re­tary of defense specif­i­cal­ly cit­ed the need to avoid inter­fer­ing with com­bat oper­a­tions when charg­ing the work­ing group with devel­op­ing a plan for imple­ment­ing repeal of the [Don’t Ask, Don’t Tell] pol­i­cy; the same con­cern applies to the judi­cial inval­i­da­tion of the statute,” Stan­ley said.

Inval­i­dat­ing the law will require changes in a num­ber of areas includ­ing hous­ing, ben­e­fits, re-acces­sion, mil­i­tary equal oppor­tu­ni­ty, anti-harass­ment, stan­dards of con­duct, rights and oblig­a­tions of the chap­lain corps and oth­ers.

“Amend­ing these reg­u­la­tions would typ­i­cal­ly take sev­er­al months,” Stan­ly said in the depo­si­tion. “To change all the impli­cat­ed poli­cies and under­ly­ing reg­u­la­tions will require a mas­sive under­tak­ing by the depart­ment and can­not be done overnight.”

U.S. Depart­ment of Defense
Office of the Assis­tant Sec­re­tary of Defense (Pub­lic Affairs)

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