The legislative compromise that “Don’t Ask, Don’t Tell” repeal supporters in Congress unveiled this week has inspired mixed reactions and led LGBT leaders to advocate for its passage even as some expressed disappointment over its shortcomings.
Among those expressing displeasure was Lt. Dan Choi, a gay U.S. Army infantry soldier who was arrested twice for chaining himself to the White House fence in protest of “Don’t Ask, Don’t Tell.”
In an interview with the Blade on Monday, Choi said the proposal requires LGBT people to compromise themselves without getting much in return.
“In a compromise, it’s insinuated that both sides have given something, and I don’t see that,” he said. “So it’s too generous to call it that. It’s a delay and it’s asking us to further put our political agenda before the needs of the soldiers, and that’s who’s getting compromised.”
Despite his disappointment in the compromise language, Choi said he didn’t want the measure to fail this week when it came before Congress. He noted that “it’s only one step” in the path for non-discrimination in the U.S. military and people should keep fighting.
The measure in the Senate was made public Monday by Sen. Joseph Lieberman (I-Conn.), the sponsor of standalone legislation for repeal in the Senate. On Tuesday, Rep. Patrick Murphy (D-Pa.), champion of standalone repeal legislation in the House, unveiled an identically worded companion bill.
The Senate Armed Services Committee and the full House were expected to vote on the “Don’t Ask, Don’t Tell” measures this week during consideration of Pentagon budget legislation known as the fiscal year 2011 defense authorization bill. Neither vote occurred before Blade deadline.
The measures presented by Lieberman and Murphy would repeal the “Don’t Ask, Don’t Tell” statute mandating that openly gay, lesbian and bisexual people be discharged from the U.S. armed forces.
However, the law would only be repealed after the Pentagon completes its study — due Dec. 1 — on how to implement repeal in the U.S. military.
Further, President Barack Obama, Defense Secretary Robert Gates and Chairman of the Joint Chiefs of Staff Adm. Michael Mullen would have to certify that the U.S. military is ready for the transition and that the change “is consistent with the standards of military readiness, military effectiveness, unit cohesion and recruiting and retention.”
The legislation doesn’t give a timeline when the president, the defense secretary and the chairman of the Joint Chiefs of Staff would have to issue the certification. On Monday, the Associated Press reported that meeting those conditions for repeal would allow the Pentagon “perhaps even years” to prepare for repeal.
Notably, the legislation also lacks non-discrimination language and would return authority on discharging LGBT service members to the Pentagon.
Choi said the provisions in the legislation are “essentially compromising the integrity of the soldiers until a time to be determined” and compared the lack of a deadline for certification to a military commander issuing an order without a timeline.
“It’s devastating to the soldiers who don’t know and it leaves a lot of questions out there,” Choi said. “My question back to the president is how long are we going to force our soldiers to lie? Nobody can answer the question when.”
But Choi said “what bothers” him the most is the absence of the non-discrimination language that was contained in the standalone version of the bill.
“I thought the most heinous part of ‘Don’t Ask, Don’t Tell’ was that it enforced discrimination, and now it just says that’s altogether not as important,” Choi said. “I think it’s within everybody’s mandate to get rid of discrimination where it exists.”
Choi said as a result of the compromise, LGBT soldiers could be subject to a policy that’s “turbulent and precarious.”
Also expressing disappointment about the lack of non-discrimination language was Alex Nicholson, executive director of Servicemembers United, who said removal of the non-discrimination language was “unnecessary” to get more support for repeal.
“I think we would have been in the same position had we not made three concessions and only made two,” he said. “Other minority groups have not received statutory non-discrimination protection in the military — this would have been something extra — but it was something we were on track to secure.”
Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said he’s not sure who initiated the idea of omitting non-discrimination language, but said those supporting repeal thought such a move would improve its chances of passage.
“It’s not anything that SLDN volunteered to give up,” Sarvis said. “I think at the end of the day, we all realized that we would have to live with this new compromise.”
The idea of removing non-discrimination language and returning authority on discharges to the Pentagon was advanced previously by the Palm Center, a think tank on gays in the military. Earlier this month, the Blade reported that the Palm Center had been asking other LGBT groups to support such a move.
But Aaron Belkin, director of the Palm Center, said he didn’t know why the non-discrimination language was removed and noted that Palm wasn’t active in pushing for such a move as part of the compromise measure.
“This was news to me when I was told,” he said. “I was actually in bed when I was told and I promise you we had nothing to do with it.”
Still, Belkin said passing legislation with non-discrimination language is “not politically realistic” and the compromise measure advanced earlier this week is “what we can get.”
But Nicholson said the Palm Center pushed hard to have the non-discrimination language removed from the legislation, noting recent reports in which Belkin advocated the proposal.
Nicholson said Belkin was responsible for Saturday’s opinion piece in the Washington Post in which former Chairman of the Joint Chiefs of Staff Gen. John Shalikashvili advocated for a return of authority to the Pentagon.
“There’s been no secret about that fact that the Palm Center has lobbied hard to take out the non-discrimination language, including the [Shalikashvili] op-ed and several other pieces of media that the Palm Center has done,” Nicholson said.
Compromise brought White House support
While the compromise fell short of what repeal supporters initially sought, the conditions set forth in the proposal brought support from the White House, which opponents of “Don’t Ask, Don’t Tell” had long sought.
In a letter published Monday, Peter Orzag, director of the Office of Management & Budget, writes the repeal measure adheres to the Pentagon’s request to finish its study on the issue at the end of the year and therefore is supported by the Obama administration.
Orzag says that the Pentagon review would be “ideally” completed before Congress takes action on the issue, but notes the administration “understands that Congress has chosen to move forward with the legislation now and seeks the administration’s views on the proposed amendment.”
In the letter, Orzag says he understands the amendment would ensure implementation of repeal is consistent with “standards of military readiness, effectiveness, unit cohesion, recruiting and retention.”
“The administration therefore supports the proposed amendment,” Orzag writes.
Geoff Morrell, a Pentagon spokesperson, issued a statement Tuesday saying Gates supports the measure, although he still believes Congress should hold off on tackling the issue until after the Pentagon completes its study.
“Secretary Gates continues to believe that ideally the [Defense Department] review should be completed before there is any legislation to repeal the ‘Don’t Ask, Don’t Tell’ law,” he said. “With Congress having indicated that is not possible, the secretary can accept the language in the proposed amendment.”
Having earned support from the administration, Sarvis said the amendment is “a path to repeal” and predicted that its passage could lead to open service “by the end of the first quarter of next year.”
After the review is complete and certification happens, Sarvis said the Pentagon “would then be free” to implement regulations for open service and Obama could issue an executive order for non-discrimination in the U.S. military.
“In fact, all of the federal policies of non-discrimination have been issued by executive order since 1948,” Sarvis said, referring to the order that President Truman issued to end racial segregation in the armed forces.
Sarvis said he didn’t think a future administration would tamper with such an executive order or “try to tinker with this and make it a political football.”
“For instance, the four executive orders that I’ve referred to since 1948 have not been undone by new administrations,” Sarvis said. “I think that if the president issues an executive order after ‘Don’t Ask, Don’t Tell’ is eliminated — I don’t see a new Congress or a new administration trying to undo an executive order.”
But Choi said he doesn’t want supporters of “Don’t Ask, Don’t Tell” repeal mistaking the Orzag letter in support of the proposal as Obama taking action on the issue. He noted the president could have transmitted repeal language to Congress for the defense budget legislation.
“Obviously, if he would have put the defense authorization bill language through to include the repeal legislation, then we wouldn’t be in this situation where he’s trying to get us to celebrate a win,” Choi said.
To follow-up on his earlier arrests at the White House and put more pressure on the president, Choi said he plans to take part in new acts of civil disobedience to draw attention to the issue of LGBT service members serving openly in the U.S. military.
“I not only plan to, but I encourage everybody else to,” Choi said. “The fact of the matter is so long as telling the truth is considered civil disobedience, we need to be committing civil disobedience every single day.”
Several major LGBT organizations issued statements this week praising the “Don’t Ask, Don’t Tell” compromise shortly after it was announced.
In a statement, Human Rights Campaign President Joe Solmonese said Monday the new support from the administration means people rallying against “Don’t Ask, Don’t Tell” are “on the brink of historic action to both strengthen our military and respect the service of lesbian and gay troops.”
“Today’s announcement paves the path to fulfill the president’s call to end ‘Don’t Ask, Don’t Tell’ this year and puts us one step closer to removing this stain from the laws of our nation,” Solmonese said.
Nicholson of Servicemembers United said in a statement that Monday’s letter was “long awaited, much needed, and immensely helpful.”
Choi said the organizations apparently had their statements “all set up” to celebrate the compromise regardless of the deal’s content.
“Just from my military perspective, it seems very much like they’re putting a ‘mission accomplished’ banner on top of a carrier, and saying our part is done and we have fulfilled our mission,” Choi said. “For people to revel in this kind of celebration instead of encouraging people to demand the fullness of repeal of ‘Don’t Ask, Don’t Tell’ is certainly a misstep.”
Other LGBT groups that advocate for “Don’t Ask, Don’t Tell” repeal as one issue in their portfolios indicated support for the compromise measure, although they acknowledged some shortcomings.
In a statement to the Blade, Rea Carey, executive director of the National Gay & Lesbian Task Force, said her organization was “encouraged” that Congress and the administration was “taking a step” to address the legal discrimination of “Don’t Ask, Don’t Tell.”
“This presents a path that could end in men and women being able to serve openly, honestly and to great benefit of our country, but it falls short of providing clear assurances of protection and a specific timeline for implementation,” she said. “The important action this week is to ensure passage of this step toward full repeal.”
In another statement, Kate Kendell, executive director of the National Center for Lesbian Rights, offered a similarly lukewarm statement on the compromise measure.
“The amendment and compromise fall short of an outright repeal, which was what we had all been hoping for,” she said. “While we are cautiously optimistic that this agreement will lead to a full repeal, it is not yet time to celebrate the end of this appalling and shameful law.”
Among the organizations to strongly support the White House’s endorsement of the compromise was SLDN. In a statement, Sarvis called the agreement a “dramatic breakthrough.”
In response to Choi’s criticism of the statements of support for reaching an agreement with the White House, Sarvis said he respects Choi’s service and commitment to overturning “Don’t Ask, Don’t Tell.”
“His view of the legislative process and the strategy is not a view that I share,” Sarvis said. “On this one, in terms of legislative strategy and timing, I have a different view and my view is I want to get what’s realistic and I want to get something that will ensure that service members can serve openly as soon as possible.”