July 8, 2011 | by Chris Johnson
Pentagon issues moratorium on ‘Don’t Ask’ discharges

Undersecretary of Defense for Personnel & Readiness Clifford Stanley (Blade photo by Michael Key)

A top Pentagon official issued a moratorium on discharges under “Don’t Ask, Don’t Tell” on Friday in the wake of a federal appellate court decision barring enforcement of the anti-gay law.

In a letter dated July 8, Under Secretary of Defense for Personnel & Readiness Clifford Stanley writes that the military service secretaries must comply with an injunction against enforcing military’s gay ban that was reinstated Wednesday by a three-judge panel on the U.S. Ninth Circuit Court of Appeals. The institution of this moratorium was first reported by the Army Times.

“The reinstatement of that injunction … is effective immediately,” Stanley writes. “The secretaries of the military departments shall ensure immediate compliance with the injunction and this memorandum.”

An injunction on “Don’t Ask, Don’t Tell” had already been put in place last year by U.S. District Judge Virginia Phillips after she determined the law was unconstitutional in the case of Log Cabin Republicans v. United States. However, the moratorium against enforcing “Don’t Ask, Don’t Tell” lasted only eight days. The Ninth Circuit placed a stay on the injunction in November upon request from the U.S. government.

The decision of the Ninth Circuit panel on Wednesday reverses that decision and allows gay service members to serve in the U.S. military without fear of dismissal. Additionally, openly gay people will be allowed to enlist in the armed forces.

“It remains the policy of the Department of Defense not to ask service members or applicants about their sexual orientation, to treat all members with dignity and respect, and to ensure maintenance of good order and discipline,” Stanley writes. “Further, because the injunction is once again in effect, the department will process applications for enlistment or appointment without regard to sexual orientation.”

The Obama administration can appeal the Ninth Circuit panel’s decision to either the full Ninth Circuit or the Supreme Court. In response via email to a Washington Blade question on whether a decision has been made on whether or not to appeal, Pentagon spokesperson Cynthia Smith replied, “We are studying the ruling with the Department of Justice.”

Aubrey Sarvis, executive director of the Servicemembers Legal Defense Network, said his organization welcomes the temporary suspension of “Don’t Ask, Don’t Tell” discharges, but wants further action from the Pentagon.

“We urge the Pentagon to go further by suspending all investigations of service members that are currently ongoing, and confirm that the Department of Defense and Department of Justice are not preparing to appeal the court’s ruling,” Sarvis said. “It’s imperative for service members, gay and straight, who have been living with ambiguity for far too long as this process has languished unnecessarily. The time for clarity and finality is long overdue.”

Expulsions under “Don’t Ask, Don’t Tell” have been few in number since the Pentagon instituted new guidance in October raising the discharge authority to the military service secretaries “in coordination” with the under secretary of defense for personnel and readiness and the Pentagon general counsel. Four discharges have reportedly taken place since the October guidance was put in place.

The injunction comes after legislation was signed in December allowing for repeal of “Don’t Ask, Don’t Tell.” Under the repeal law, “Don’t Ask, Don’t Tell” will be off the books after 60 days pass following certification from the president, the defense secretary and the chair of the Joint Chiefs of Staff. The Pentagon has instituted training for troops on handling open service, but certification hasn’t yet happened.

Smith said the Pentagon still plans certification for ending for “Don’t Ask, Don’t Tell” and said implementation “is proceeding smoothly, is well underway, and certification is just weeks away.”

Chris Johnson is Chief Political & White House Reporter for the Washington Blade. Johnson attends the daily White House press briefings and is a member of the White House Correspondents' Association. Follow Chris

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