The Justice Department will seek a short-term emergency stay to the bar on the military’s Don’t Ask Don’t Tell policy at the Ninth Circuit Court of Appeals, a puzzling twist to a court case that appeared to end the policy outright.
In the brief, DoJ seeks reinstatement of the policy by close of business today, July 15. It says that DoJ continues to defend the constitutionality of Don’t Ask Don’t Tell, which the President opposes and which was repealed by Congress late last year.
This appears to be a case about separation of powers and timing more than anything. The Pentagon is ready to certify repeal; all of the service chiefs, service secretaries and combatant commanders have submitted their final assessments. Repeal is scheduled to be certified by the end of the month or the beginning of next month, and after certification there is a 60-day Congressional review period (put in to earn Robert Byrd’s vote).
But the Justice Department says that the injunction banning the policy, coming just weeks before the Pentagon’s own certification process, will cause “real and immediate harm.” If that’s the case, why did the Pentagon meekly implement the injunction worldwide, allowing for the acceptance of gay and lesbian recruits, along with an end to all discharges? Maybe DoJ and DoD aren’t speaking to one another, but ending the policy only to fight to start it up again will cause a supreme amount of confusion and could lead to actual harm to the lives of soldiers.