By Kerry Eleveld
Originally published on Advocate.com May 11 2009 12:00 AM ET
National security adviser Gen. James Jones appearing Sunday on ABC's This Week indicated that the future of the military's policy barring gays serving openly in the military is not clear.
Asked by George Stephanopoulos directly whether "don't ask, don't tell" would be overturned, General Jones responded, "I don't know."
The statement runs in direct conflict with President Barack Obama's handwritten note to a lesbian soldier, 2nd Lt. Sandy Tsao, who will be discharged later this month from the Army under the policy.
In response to a letter from Tsao, President Obama wrote, "Although it will take some time to complete (partly because it needs congressional action) I intend to fulfill my commitment."
Asked for a clarification of General Jones's comments, a White House spokesperson said, "The president remains committed to repeal."
The Servicemembers Legal Defense Network, a group that lobbies for repeal of the gay ban, sent out an immediate response to Jones's appearance: "Jones's answer, along with Secretary Gates's remarks to the Army War College on April 16, make it clear that a calculated political decision has been made that the president is not going to take 'don't ask, don't tell' on publicly -- himself -- and instead his Defense team is doing it." Defense Secretary Gates has also indicated in previous remarks that repeal is still in question.
Many LGBT advocates familiar with the machinations of Capitol Hill agree with the assessment that President Obama has chosen not to spend political capital on overturning the policy.
One of the key questions they have been asking is why, if the president is serious about repealing the policy, has a bill not been introduced in the Senate? The Military Readiness Enhancement Act was dropped in the House in early March.
"If I were still advising the president, I'd tell him that it's essential, in order to make it clear where he stands and where the Democratic Party stands, that there be a bill repealing the ban introduced in the Senate right away," said Richard Socarides, who served six years in the Clinton administration and was a special assistant to the president on LGBT issues. "The fact is, it should have been done back in January. If the White House is telling Congress something else, well, there's no excuse for that. They are ceding policy control of the issue to the military."
Several LGBT lobbyists on the Hill have also suggested that it's impossible to build support for repeal without a bill.
"You can't go to lobby and say, 'Would you support this theoretically?'" said one lobbyist, who spoke on the condition of anonymity. "I know the top 20 excuses that staffers give and one of the top ones is, 'You're asking me to support something I haven't seen.'"
Aubrey Sarvis, executive director of SLDN, indicated that a bill was unlikely to be introduced without support from the president. "Congress will likely not act without a nod from the commander in chief. Congress often defers military personnel matters to him. And Obama is the ultimate enforcer of 'don't ask, don't tell,'" he said.
A Democratic strategist who spoke on the condition of anonymity pressed the point a little harder: "No one wants to push this without the backing of the White House," he said.
But White House spokesman Shin Inouye said President Obama will work to overturn the policy. "The president has made clear that he wants 'don't ask, don't tell' repealed and he will work with the Pentagon and with Congress to make sure this happens," Inouye said.
To date, the White House has not given any indication of the steps that might be taken to repeal the policy or what a timeline might look like. LGBT groups appear to be in the dark too.
"The administration is probably working through a lot of different options right now, and we're interested to see what is the most expeditious and sustainable one," Joe Solmonese, president of the Human Rights Campaign, said during an interview last Thursday. "They could be working on a 'don't ask, don't tell' strategy that would take 18 months. I trust that this is something that's being worked on and they're looking at something more comprehensive and long-term than just putting out a statement [of support]."
Some activists, frustrated by what they view as a lack of action on the policy, are calling on the president to issue an executive order that would indefinitely suspend investigations and prosecutions under "don't ask, don't tell" while the military conducts a review of the policy.
"There has got to be an immediate moratorium on 'don't ask, don't tell' discharges," said Socarides. "It's well within the president's authority to do that. People's lives are being destroyed, their careers are being destroyed."
The idea of suspending the policy through executive order appears to be gaining steam among some legal scholars and lawmakers alike.
Rep. Rush Holt of New Jersey, an original cosponsor of the House repeal bill, wrote in an editorial over the weekend: "We have 140 cosponsors on this bill at the moment, more than enough to justify moving it expeditiously through the House Committee on Armed Services and to the House floor before the July Fourth holiday. In the meantime, the president could issue an executive order announcing a study of the current policy. During that time, there could be a moratorium on any investigations or prosecutions of LGBT soldiers."
A new study released Monday by a team of legal experts in military law made the case for use of an executive order. Aaron Belkin, political science professor and director of the Palm Center, a think tank that studies gender, sexuality, and the military, explained the crux of the rationale.
"The most important legal justification for signing an executive order is that Congress has passed a stop-loss bill which explicitly gives the president the right to retain any service member who is necessary for the national defense during a time of national security emergency," he said. "We are now, by law, in a period of national security emergency; therefore the stop-loss law is in effect and that gives the commander in chief the right to trump any other law having to do with military personnel policy, separation, and retention."
Still other activists familiar with the military policy question the viability of an executive order from the president.
Dixon Osburn, a Washington lawyer and former executive director of SLDN, said he studied the issue thoroughly while he was with the organization.
"We concluded that there was little legal precedent that definitively ruled whether the Constitution gave the president or Congress the plenary authority to regulate military personnel matters," he said, adding that the Constitution gives Congress the right to raise armies while it gives the president the right to nominate certain personnel for promotion.
"So, could the president issue an executive order concerning 'don't ask, don't tell?' Yes. Could Congress bring legal action challenging the president's executive order? Yes," he said.
The other argument often leveled at the executive order option is that it's impermanent and subject to the whims of whoever sits in the Oval Office. "A new president four or eight years from now could easily come in and reverse it," said SLDN's Sarvis.
But Belkin thinks incrementalism is exactly the right approach and would be harder to undo than people argue.
"It would be operationally and politically impossible to reverse an executive order once people see gays serving openly and legally," he said, noting the incredibly high polling numbers for allowing gays to serve in the military. "It's much more difficult to take away a right than to provide a right," he added.