White House: Law only answer for gays in military

Source: Associated Press

WASHINGTON — The White House says it won't stop gays and lesbians from being dismissed from the military while the Obama administration works to repeal a decade-old policy banning openly gay people from serving in uniform.

White House spokesman Robert Gibbs said Tuesday that President Barack Obama does not plan to intervene in current cases against men and women who announce their homosexuality.

Gibbs says the president wants to do away with the "don't ask, don't tell" policy through legislation.

Gibbs says the policy does not serve the national interest and that Obama is working with lawmakers for what Gibbs calls a "durable legislative solution." He says a repeal of the policy requires "more than the snapping of one's fingers."

Read more: http://www.palmbeachpost.com/politics/content/shared-gen/ap/US_President_And_White_House_Advisers/US_Obama_Military_Gays.html

But it seems that the administration wants to do just about everything through legislation. I guess that provides the White House with some cover when certain legislation doesn't pass, like the recent bill that would have given the courts the ability to renegotiate a home loan so that the home owner could keep their House.

I believe that it was stated that the President was strongly behind that bill, and he fought hard to get it....never mind!!!

Bush was the one that increased the number of executive orders to all time highs. I believe that was a power grab for the executive.

is also a specific statute, passed by Congress, that authorizes the POTUS to suspend military discharges. He could have signed an executive order on Inaguration Day suspending all DADT discharges.

http://www4.law.cornell.edu/uscode/10/12305.html

Sure, it takes more than a snap of the fingers. It takes the signature of Obama. Nothing more.

All it takes. The legislation was passed. He just doesn't want to pick up the pen.

still need legislation, too, though. However, he could do a lot of good while we wait for Congress.

Sadly, both our Democratic Congress and our Democratic President could use a trip to the Emerald City.











We more than did our part in 2006 and 2008. So far, they are not doing theirs in return.

:rofl:

(1) A statute is better than an EO:
(1)(a) it's harder to change: a later president can't undo it by snapping fingers
(1)(b) it has more force
(2) An EO would undercut any political pressure for a statute: after an EO, Congress would be much more likely to say we don't need to do this
(3) 10 USC 12305 is not really intended for the use you propose: to use 10 USC 12305 to suspend DADT separations requires taking the view that a service member who has announced a homosexual orientation is automatically for that reason "essential to the national security of the United States," which is an unsound position, for both logical and political reasons

Conclusion: Want to repeal DADT? Then pressure Congress: the result will be more permanent and far-reaching

1/ An EO suspending DADT discharges does not preclude a statute. Even if Obama issues an EO< Congress can repeal DADT whenever it wants. The EO would protect individuals from losing their careers while Congress gets its act together (no pun intended). Regardless whether a statute is better than an EO or not, nothing prevents America from having the benefit of both. So, your first argument is just off base.

2/ ongress can repeal its own statutes whenever it wants. Yes, that is harder to do than another President's repealing an executive order, but again, we can have both the statute and the executive order, the EO now and the statute whenever Congress gets to it. If he signs it, Obama would not repeal it and neither would Biden (who told Ellen DeGeneres he supports marriage for all).

A new President has less than no political incentive to resurrect the issue. However, even if a future President repeals the EO in 2013 or 2017, Congress will have acted by then. (According to Frank, Congress plans to act on this in 2010.) And if Congress STILL has not acted by then, so what?

We are talking about real people here, not some abstraction. Suspending 4 to 8 years worth of DADT discharges would save a lot of careers, which would be a lot better than saving none. Not to mention that we need every damn troop we can possibly get, given Obama's plans, and are having trouble recruiting. FFS, if nothing else, we owe it to our military not to lessen their numbers any further, thereby making things harder and more dangerous for those who remain.

An EO would NOT undercut political pressure because an EO only suspends discharges. It does not abolish the odious DADT policy. Obama could abolish it, if Clinton had just had the courage to sign an EO, instead of sending it to Congress. As it is, though, it's become a separation of powers issue. So, there is still need for Congress to act. Until Congress acts, the rights organizations and the liberals in the media will keep up the pressure and, with what little power I have by my lonesome, so will I. I hope you will, too, just as I hope you are pressuring your Senators, your Rep and Obama right now.

However, again, these are real human beings and real military careers we are talking about. As long as the EO is in place while Congress stalls. their careers and dignity are saved, with all the good that does for them, their fellow troops and the nation. If the EO ends, your argument becomes even more moot. So, again, the EO would be better than no EO.

3/ Unless you can show us some legislative history that backs the claim, that 10 USC 12305 does not cover suspending DADT disharges is only your opinion, and not a very sound opinion at that. The language of the statute is sweeping. It makes no exclusions at all. It does not even exclude dishonorable discharges. Besides, you have not dealt at all with the the powers of CIC given by the Constitution, which are also unlimited. Even assuming, no matter how incorrectly, just for the sake of argument, that 10 USC is open to your interpretation and Obama disagrees and issues an EO, so what? What would happen? Is Pelosi going to take him to the Supreme Court to make sure gays who are honest get discharged? Would the SCOTUS even hear that case?

Part of 10 USC 12305 (emphasis mine)

"(a) Notwithstanding ANY other provision of law, during ANY period members of a reserve component are serving on active duty pursuant to an order to active duty under authority of section 12301, 12302, or 12304 of this title, the President may suspend ANY provision of law relating to promotion, retirement, or separation applicable to any member of the armed forces who the President determines is essential to the national security of the United States."

Totally sweeping and totally discretionary with the President. I cannot see how Congress could have made that language broader if it tried--and it obviously did try.

Hard to say that, during times when things are bad enough to require reserve units, the hands of the CIC are tied as to the military. Hard to argue that troops are not necessary to our national security these days.

BTW, even though I repeated your approach, next time, you might consider telling a poster the reasons that you disagree with the poster, not the reasons the other poster is supposedly wrong, especially when there is room for difference of opinion. In this case, military law experts have said Obama can do this and I am agreeing with them, so there has to be at least rooom for more than your opinion. Having a different interpretation of the law than you do does not make anyone "wrong" unless you can prove your case. You didn't. You simply gave a different opinion. Just a thought.

assertions are opinion, even if I fail to attach "it is my opinion that" at the beginning of every sentence of mine that reflects an opinion: the habit of attaching such disclaimers needlessly reduces crispness of text, and it also insults competent readers (such as yourself) who are perfectly capable of identifying opinions

Should you wish to attach the disclaimer "it is my opinion that" at the beginning of every sentence of yours that reflects an opinion, perhaps in order to aid less capable readers, then (of course) you would certainly be entirely free to do so, although that does not seem to be your current practice, any more than it is mine -- but I would encourage you not to add such unnecessary text to your posts, since it adds mere tedium without much other benefit

With regard to the issue of statute versus EO:

Congress traditionally touches hot-button issues only while the buttons are hot, and any opportunity for claiming that such an issue has already been addressed by someone else will usually seized immediately as a pretext for moving on. The logical correctness of your remark An EO suspending DADT discharges does not preclude a statute therefore pales compared to the unfortunate political observation that An EO will substantially reduce the likelihood of statutory change. Even the recent Palm Center blueprint "How to End “Don’t Ask, Don’t Tell” -- which seems to be the original source of calls for an EO based on 10 USC 12305 -- says directly and explicitly Legislative action is still required to permanently remove “don’t ask, don’t tell” (the offensive policy being encoded at 10 USC 654): this being the case, one should aim directly for statutory change

When you argue -- Congress can repeal its own statutes whenever it wants. Yes, that is harder to do than another President's repealing an executive order -- you seem to be reiterating a point I made, rather than refuting it. You also misunderstand my comment on the statutory language: while you are correct that 10 USC 12305 confers broad authority, the language any member of the armed forces who the President determines is essential to the national security of the United States conditions this authority on a specific finding of an essential national security interest, an interest which you apparently want the President to see in the Afghan-Iraq crisis. In fact, when you say the EO now and the statute whenever Congress gets to it, you are missing an issue associated with the Palm Center approach: 10 USC 12305 is the basis of the Bush-era "stop-loss" orders, and the Palm Center proposal thus implicitly ties suspension of DADT separations to those "stop-loss" orders and more particularly to the ongoing Afghan-Iraq crisis; such a suspension therefore could only appear cogent until the US withdraws from Iraq about a year from now. Beyond that, many of us will have no intention whatsoever of adopting your expansive theory that the powers of CIC given by the Constitution .. are .. unlimited, which is inimical to any coherent "checks and balances" tradition

pending legislatve review. And he should, especially in this economy and while we're fighting two wars with Pakistan in crisis. That's just common sense.

Let's start a company called "Pinkwater" for just that purpose.

I would love to see a White House response to the arguments in this study, but I'm sure we'll continue to get chirping crickets. It makes the excuses for why the Obama Administration thinks it can do NOTHING about DADT is pure baloney.
A new report released today, "How to End 'Don't Ask, Don't Tell': A Roadmap of Political, Legal, Regulatory, and Organizational Steps to Equal Treatment," sponsored by the Palm Center at the University of California, Santa Barbara, clearly presents a way the President can stop the discriminatory discharge of gay and lesbian service members without Congress passing a law. It boils down to three points (the full release is below the fold).

1) Under the law "the President may suspend any provision of law relating to promotion, retirement, or separation applicable to any member of the armed forces who the President determines is essential to the national security of the United States" during a "period of national emergency." The statute specifically defines a "national emergency" as a time when "members of a reserve component are serving involuntarily on active duty."

Check on that front. How many tours have reservist gone on now?

2) Don't Ask, Don't Tell grants to the Defense Department authority to determine the process by which discharges will be carried out, saying they will proceed "under regulations prescribed by the Secretary of Defense... in accordance with procedures set forth in such regulation."

http://www.pamshouseblend.com/diary/10924/report-obama-can-stop-the-discharge-of-openly-gay-and-lesbian-service-members-now

the white house can't do anything about it.

yeah it ain't true -- but they're safe.

I just don't want to dirty my hands to do it.

With every comment the man speaks regarding his "fierce advocacy" for gays and lesbians and his actions I truly wonder whose side he is actually on.

all DADT discharges. Is that more than a snap of the fingers? Yeah, I guess, but not by much.

http://www4.law.cornell.edu/uscode/10/12305.html

We are still in Iraq, surging in Afghanistan, in danger of God knows what in Pakistan, fighting terrorism, without resources to intevene meaningfully in genocide in Darfur, our troops getting sent back over and over via "stop loss" are killing each other and we are having trouble recruiting. And that's just what we know about as of today.

If all that doesn't amoung to justification for suspending DADT discharges, I don't know what would.

And I don't think there's a US President that can even stand in its way anymore without the MIC probably showing him the Zapruder tape. I'm losing my "Hope" for real "Change" very quickly.

... not caring that they're sinking further into suffering. You can do both, you know.

He can reinstate folks, and prevent further firings, by executive order, while legislation is pending. It's a matter of what's right.

... while the effort to repeal DADT goes forward seems like a simple, obvious thing to do.

Extremely disappointing to hear Gibbs saying Pres. Obama just won't do it. :(

We need a law, just like for other minorities, disabled people, health care, global warming, etc. An executive order is not enough, and the assholes in Congress need to step up or lose their jobs.

about this, just as it was not only African Americans who cared that African Americans could register to vote.

There's Article II, Section 2 of the Constitution, which makes him CIC and there is 10 USC 12305, which specifies that he can suspend discharges. That would save people's careers until Congress does its work.


He could have exercised those powers on Inauguration Day, right after lunch, just as Jimmy Carter did with amnesty before he walked down Pennsylvania Avenue. Then, no one would have been discharged for DADT violations during his term.

Article II, Section 2 of the COTUS also gives him plenary power to pardon people, so that would take care of those already found guilty. He can pardon those discharged at any time, but he should certainly do so for those discharged because he failed to sign an executive order.

The WH is being dishonest and Obama was dishonest in that note to the troop who wrote him that she came out because she had integrity and integrity is one of the seven values of the Army. (Irony abounds.)

I wish people would go to www.whitehouse.gov and tell people to exercise his power under the Article II, Section 2 of the Constitution and 10 USC 12305, instead of joining in the lie.

I am not saying only LGBT DUers care. I care and I am none of those.

I'm saying that the White House is right that Congress needs to step up and fix it permanently.

It is bound to be headed down "yes he can", "no he cant" avenue. Been there...got a t-shirt.


-nnnm

n/t

Posted in the wrong thread.