A consistent theme is beginning to emerge as a rationale for convincing detractors of “don’t ask, don’t tell” repeal to back legislative action before the end of the year: Passing legislation would give the Pentagon far more control over implementation than the quick and decisive stroke of a judge’s pen.
This reasoning is being pushed by none other than Secretary of Defense Robert Gates, who told ABC’s Cynthia McFadden in a Tuesday segment that he believed the demise of the policy was “inevitable.”
“The question is whether it is done by legislation that allows us to do it in a thoughtful and careful way, or whether it is struck down by the courts. Because recent court decisions are certainly pointing in that direction,” he explained, in some of his most expansive remarks on the subject to date.
In making his case, Gates referenced a two-week period in October when the Pentagon went through “four different policy changes” after a federal judge issued an injunction on the law and then denied a stay request until she was overruled by a higher court.
“So I, I think we have the least flexibility — we have the least opportunity to do this intelligently and carefully and with the kind of preparation that is necessary, if the courts take this action as opposed to there being legislation,” Gates concluded.
The certainty that the courts would act even if Congress failed to is an observation White House press secretary Robert Gibbs perpetuated in several interviews just before the midterms.
“I think that the courts have demonstrated that the time is ticking on the policy of ‘don’t ask, don’t tell,’” Gibbs told reporters during an October 13 gaggle.
Pro-repeal lawmakers have also begun leveraging the logic.
“If Congress does not act to repeal ‘don’t ask, don’t tell’ in an orderly manner that leaves control with our nation’s military leaders, a federal judge may do so unilaterally in a way that is disruptive to our troops and ongoing military efforts,” wrote senators Joe Lieberman, Mark Udall, and Kirsten Gillibrand in a letter encouraging their colleagues to pass repeal during the lame duck session.
Sec. Gates’s comments to ABC came on the heels of an unprecedented first for him: urging Congress to pass repeal before the end of the year.
"I would like to see the repeal of ‘don't ask, don't tell,’ but I'm not sure what the prospects for that are," he told reporters traveling with him in Australia last weekend.
Gates has consistently cautioned Congress not to act before the Pentagon working group issues its report on the implementation of repeal in early December.
But the secretary appears to be weighing all the control provided to the military in the legislation against the immediacy with which a judge can order an injunction on the policy.
The legislation stipulates that the policy would remain in effect until three things occur: the Pentagon’s working group study is released; the secretary of defense, chairman of the joint chiefs, and president certify that repeal would not undermine military readiness; and a 60-day waiting period that commences after certification passes.
Gates told McFadden he hoped people would think he was a “realist” if he could make the case that having the law overturned by the courts is “the worst outcome because it gives us no flexibility.”
“This thing is gonna go one way or the other,” he said. “And trying to do this all at once and under some kind of [judicial] fiat, I think is not the way to do it.”