(CN) – The Department of Justice continued to defend its position on the military’s “Don’t Ask, Don’t Tell” policy in a motion filed in the 9th Circuit late Thursday, asking the federal appeals panel to reconsider its lifting of a stay while the Obama Administration finishes the “orderly transition” called for by Congress, which could be complete in a matter of weeks.
Early this month, the San Francisco-based circuit lifted a worldwide stay of an injunction that banned the government from enforcing the policy against gay and lesbian soldiers serving openly in the military, concluding that the stay was moot because the government was no longer defending the policy. But the Department of Justice argues that lifting the stay would undermine the process begun under the Don’t Ask, Don’t Tell Repeal Act of 2010.
“Reconsideration of the panel’s decision to lift the stay is necessary to protect the careful and deliberate process created by Congress and signed by the President, in which it empowered the military to make key judgments regarding the implementation and timing of repeal,” wrote Justice Department attorney Henry Whitaker in a 37-page emergency motion.
“The Executive has been diligently implementing the transition that Congress prescribed. To be sure, the transition that Congress prescribed and that the motions panel may not have been aware of the full extent of the implementation when it issued its order,” the motion states, adding that “it is expected that the required certification-that the military has made the preparations necessary for repeal-will be presented for decision the Chairman of the Joint Chiefs of Staff and the Secretary of Defense in late July or early August.”
Since Congress passed the Repeal Act, only one service member has been discharged under “Don’t Ask, Don’t Tell,” the government argued, and “that individual requested an expedited discharge.”
“The panel’s order, which wrests authority for the transition from the military and places it in the hands of a single district judge, gives no weight to Congress’s judgments about the process that is needed to make this transition maximally effective,” according to the motion. “That step is particularly unjustified at this late stage of the process, in light of the enormous progress the military has made in the months since passage of the Repeal Act, and how close it is to a certification decision.”
The plaintiff in long-running litigation, the group Log Cabin Republicans, was unconvinced by the government’s attempts to defend the same law that it is seeking to repeal.
“This latest maneuver by the president continues a pattern of doublespeak that all Americans should find troubling. All this does is further confuse the situation for our men and women in uniform,” said Executive Director R. Clarke Cooper in a statement. “Let me be clear – the president is asking the court for the power to continue threatening service members with investigation and discharge, and the right to turn away qualified Americans from military service for no reason other than their sexual orientation. Even if the administration never uses that power, it is still wrong, and the 9th Circuit was clear that there is no justification for continuing the violation of service members’ constitutional rights. ‘Don’t Ask, Don’t Tell’ is an offense to American values that should have been gone long ago. It is shameful that a president who has taken credit for opposing the policy is taking extreme measures to keep it on life support.”