Time running short for ending ‘Don’t Ask, Don’t Tell’

White House Press Secretary Robert Gibbs rankled LGBT advocates after he failed to mention ‘Don’t Ask, Don’t Tell’ repeal when asked about legislative priorities in the lame duck session of Congress. (Washington Blade photo by Michael Key)

Supporters of “Don’t Ask, Don’t Tell” repeal are pushing the Senate to end the law in the lame duck session of Congress amid questions about whether sufficient support exists to complete the task by year’s end.

One Democratic aide, who spoke on condition of anonymity, told the Blade that Senate passage of major defense budget legislation to which “Don’t Ask, Don’t Tell” repeal is attached would require “all the stars aligning” as well as active support from President Obama and Defense Secretary Robert Gates.

Asked this week whether those elements were coming into alignment as the lame duck session approaches, the aide said, “Hell no. We ain’t anywhere near alignment.”

Senate Armed Services Committee Chair Carl Levin (D-Mich.) told reporters on Tuesday that passing the fiscal year 2011 defense authorization bill with the “Don’t Ask, Don’t Tell” repeal language presents challenges.

“We’re trying to get both things accomplished, and we just don’t know if we can,” Levin said, according to the Grand Rapids Press.

“Republicans have filibustered the whole defense bill because of that ['Don't Ask, Don't Tell'] provision. There’s some people who say that unless the defense bill has that provision, that we shouldn’t pass it,” he continued. “My position is, we should try to get both things done some way or another.”

Media reports circulated this week that Levin was engaged in talks with Sen. John McCain (R-Ariz.) to advance the defense authorization bill after stripping it of the “Don’t Ask, Don’t Tell” repeal language.

But while some see challenges in moving forward with legislative repeal of “Don’t Ask, Don’t Tell,” others see a path forward if certain conditions are met.

Winnie Stachelberg, senior vice president for external relations at the Center for American Progress Action Fund, said Tuesday in a conference call with reporters that advocates are in a “solid position” to see legislative repeal of “Don’t Ask, Don’t Tell” before year’s end.

Stachelberg cited recent public statements from the White House, Senate Majority Leader Harry Reid (D-Nev.) and Gates to back that assertion.

“The administration’s really strong statement [Monday], Sen. Reid’s statement saying they are not going to stand for a defense authorization bill that strips out the repeal measure are really strong signals that people are moving to a phase where it’s about procedures, not about the will to get this done,” Stachelberg said.

In the statement on Monday, Pfeiffer said the White House “opposes any effort to strip ‘Don’t Ask, Don’t Tell’ from the National Defense Authorization Act.”

On Sunday, Gates made news when he told reporters that he supports legislative repeal of “Don’t Ask, Don’t Tell,” but isn’t sure of the likelihood of that happening. Previously, he said waiting for the Pentagon working group report on the issue, due Dec. 1, would be the best approach for congressional action.

“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,” Gates said. “And we’ll just have to see.”

Jim Manley, a Reid spokesperson, said the senator wants to see passage of the defense authorization in lame duck, but added an agreement with Republicans is necessary to move forward.

“Like Defense Secretary Gates, Sen. Reid strongly supports the repeal of ‘Don’t Ask, Don’t Tell’ to help strengthen our volunteer force and is continuing to work toward passing the repeal this year,” Manley said. “He, of course, can’t do it alone. The senator needs Republicans to at least agree to have a debate on this issue — a debate he firmly believes the Senate should have.”

In a joint statement on Tuesday, senators known for supporting repeal of “Don’t Ask, Don’t Tell” called for legislative action before the year’s end. Sens. Joseph Lieberman (I-Conn.), Kirsten Gillibrand (D-N.Y.) and Mark Udall (D-Colo.) said the Senate “should act immediately to debate and pass” the defense authorization bill along the with the repeal language in the lame duck session.

“The Senate has passed a defense bill for forty-eight consecutive years,” the senators said. “We should not fail to meet that responsibility now, especially while our nation is at war. We must also act to put an end to the ‘Don’t Ask, Don’t Tell’ policy that not only discriminates against but also dishonors the service of gay and lesbian service members.”

The senators said a failure to act legislatively on “Don’t Ask, Don’t Tell” repeal could mean “a federal judge may do so unilaterally in a way that is disruptive to our troops and ongoing military efforts.” Last month, U.S. District Court Judge Virginia Phillips issued an injunction against enforcing “Don’t Ask, Don’t Tell” that confirmed her earlier ruling striking down the statute, but her decision was stayed by a higher court upon appeal.

“It is important that ‘Don’t Ask, Don’t Tell’ be dealt with this year, and it appears that the only way that can happen is if it’s on the defense bill,” the senators concluded.

Influencing moderate senators who may have voted “no” when the defense bill previously came before the Senate in September to change their votes a second time around is seen as essential for moving forward.

On Tuesday, the Human Rights Campaign announced that it deployed field organizers to eight states — Alaska, Arkansas, Indiana, Maine, Massachusetts, Ohio, Virginia and West Virginia — to persuade senators there to vote in favor of the defense authorization bill and “Don’t Ask, Don’t Tell” repeal. According to HRC, the efforts include mobilizing veterans to speak out, holding public events and blanketing local media with pro-repeal messages.

In a statement, Joe Solmonese, HRC’s president, said lawmakers have “one last chance” in the 111th Congress to “follow the advice of the president and top military leaders by sending ‘Don’t Ask, Don’t Tell’ to the dustbin of history.”

“It would be a travesty for a small group of senators to continue to hold hostage a bill with critical military equipment and pay raises just because some senators don’t want to even debate repeal,” Solmonese said.

The time limit for acting on legislative repeal of “Don’t Ask, Don’t Tell” in the lame duck session is among the challenges in getting it passed. Most repeal supporters say the Senate would need two weeks to debate and vote on the defense authorization bill, and more time is needed to conference the legislation with the U.S. House.

One Republican aide, who spoke on condition of anonymity, said the problem with passing the defense authorization bill isn’t having insufficient votes; it’s having insufficient time. The aide said waiting for a vote on defense authorization bill until December would mean repeal won’t happen this year.

“If Reid is serious about bringing this up, he needs to bring it up next week, he needs to cancel Thanksgiving recess and he needs to get it off the floor and into conference that first week of December,” the aide said.

But Stachelberg said she thinks Congress would stay in session for longer than what many Capitol Hill observers are expecting and would have more time to act on the defense authorization bill.

“Congress has to pass a [continuing resolution] and deal with expiring tax cuts,” Stachelberg said. “We anticipate that these issues will take longer than most people anticipate. A longer lame duck increases the likelihood of passing the defense authorization bill with ‘Don’t Ask, Don’t Tell’ in it.”

Even with a longer lame duck session, whether “Don’t Ask, Don’t Tell” is a priority for the administration remains in question.

Last week, White House Press Secretary Robert Gibbs didn’t mention repeal when asked during a news conference about legislative priorities in the lame duck session of Congress. Instead, Gibbs mentioned extending tax cuts to middle-class Americans and ratification of the START treaty, a nuclear arms reduction agreement with Russia.

Alex Nicholson, executive director of Servicemembers United, criticized the remarks and said the administration needs to make clear that it’ll push for repeal during lame duck.

“These omissions stand in stark contrast to what the president and his staff are saying elsewhere,” Nicholson said. “Mr. President, either your administration is with us or it’s against us, and a mediocre level of public advocacy from your White House is not standing with us.”

Stachelberg said she thinks Dan Pfeiffer’s statement on Monday offers a better sense of what the White House is thinking as opposed to Gibbs’ comments.

“Rather than looking earlier in the day from Gibbs’ comments … I would look to the later comments from Dan Pfeiffer showing that the administration really does care that this gets done and that they’ll stand firm on the defense authorization bill in ensuring that it includes ‘Don’t Ask, Don’t Tell’ repeal,” she said.

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said he’s “very concerned” Gibbs didn’t list the defense authorization bill as a priority for the lame duck session, but said he doesn’t think in that instance the White House press secretary “was speaking for the president.”

“The president has made it clear to some of us that he wants to get this done in the lame duck and I believe the president will be good on his word on this,” Sarvis said.

Another possible game changer for “Don’t Ask, Don’t Tell” repeal is the completion of the Pentagon working group study on implementing an end to the law. The group has a deadline of Dec. 1 to deliver its report to the defense secretary, but one source said a draft copy is already circulating within the Pentagon.

Sarvis mentioned the circulation of the draft copy and said his understanding is Levin has asked the Pentagon for a report on the status of the Pentagon working group’s recommendations.

“It’s appropriate that he do so when we know that a draft of that report is being circulated and that a draft of that report is in the hands of each one of the service chiefs,” Sarvis said.

Last weekend, Marine Corps Commandant Gen. James Amos, who assumed his position as service chief last month, said now isn’t the time for “Don’t Ask, Don’t Tell” repeal and that he’s trying to determine how to “measure that risk” of ending the law.

On Monday, the general’s comments were rebuked by Chairman of the Joint Chiefs of Staff Adm. Michael Mullen, who said he was “surprised” by Amos’ remarks and surprised he said them publicly.

Sarvis said he thinks what he called Amos’ “tirade” is related to “his being disappointed in what he saw in that report.” Media reports have stated the report will reveal that a majority of U.S. troops don’t care if gays are serving openly in the U.S. armed forces.

Could the report bolster legislative efforts to repeal “Don’t Ask, Don’t Tell”? Stachelberg said the Dec. 1 deadline for the report gives senators ample time to review the findings and take action in lame duck.

“Gates’ comments over the weekend, I think, suggest that this study — in alignment with the legislative process — will be positive,” she said.

The Center for American Progress has identified 10 senators who’ve said they want to see the Pentagon study to help inform their decision on lifting the military’s gay ban.

Among them are Sens. Scott Brown (R-Mass.), Lindsey Graham (R-S.C.), Judd Gregg (R-N.H.), McCain, Mark Pryor (D-Ark.), Olympia Snowe (R-Maine), George Voinovich (R-Ohio) and Jim Webb (D-Va.). The newly elected senators who, because of state election laws, are expected to take their seats during lame duck — Mark Kirk of Illinois and Joe Manchin of West Virginia — have also made statements along these lines.

“Some of these had opportunities to vote for or against repeal in either the House or Senate Armed Services Armed Committee, but each of them took the opportunity to say that — notwithstanding their ‘no’ votes — they wanted to see the complete assessment before Congress moves forward,” Stachelberg said. “We believe this gives them an opportunity to do so.”

Sarvis said he thinks the completion of this report, as well as Gates’ comments saying he wants congressional action on “Don’t Ask, Don’t Tell,” will be helpful in moving moderate senators to support repeal.

“I believe the report is going to satisfy a number of those senators who said they didn’t want to vote until that report was finished and they didn’t want to vote until they heard from Secretary Gates,” Sarvis said. “Well, they heard from Secretary Gates and they’re going to have the report shortly.”

The election of Kirk in Illinois has been nettlesome to many supporters of “Don’t Ask, Don’t Tell” because he voted against a repeal measure as a U.S. House member, and, upon taking his seat in lame duck, would replace Sen. Roland Burris (D-Ill.), among the strongest supporters of repeal.

Sarvis said Kirk’s position is “not entirely clear,” but emphasized that the newly elected wouldn’t even be in the Senate if Reid schedules the defense authorization bill for a vote early in the lame session.

“If the Senate moves to lay the bill down the week of the 15th when they come back, and we have the critical vote to proceed in November, Sen. Burris will still be in the Senate,” Sarvis said. “The secretary of state of Illinois has indicated that there will not be any certification [to seat Kirk] until December.”

Among those senators identified by the Center for American Progress, McCain has opposed “Don’t Ask, Don’t Tell” repeal even before the Pentagon announced its intention to end the law. Repeal advocates have said they believe McCain will continue to oppose an end to “Don’t Ask, Don’t Tell” no matter the results of the report.

But Stachelberg said the completion of the report may prompt McCain to at least drop his objection to moving the defense authorization bill as a whole to the Senate floor.

“I think he will continue to vote ‘no’ on repeal,” she said. “I think it’s a question about whether he will obstruct and stand in the way of passage of a defense authorization bill — a bill that he has cared about for years.”

After the completion of the Pentagon study, it’s possible that members of the Senate Armed Services Committee would call for hearings to examine the working group’s findings. Having to wait for hearings could delay congressional action on “Don’t Ask, Don’t Tell.”

But Rudy DeLeon, senior vice president of national security and international policy for the Center for American Progress Action Fund, said the Senate can take action to repeal “Don’t Ask, Don’t Tell” before holding hearings on the issue.

DeLeon noted that the legislation pending before Congress has a 60-day waiting period from the time that repeal is certified to the time that an end to “Don’t Ask, Don’t Tell” is enacted.

“There really is a clock that will give the military a full voice, give the military a seat at the table, so the Joint Chiefs and the combatant commanders will certainly be able to offer their views on the implementation of the repeal,” he said.