DOJ Asks For Stay Of DADT Injunction Pending Appeal

Lauren Victoria Burke/WDCPIX.COM

The Department of Justice today asked a federal judge to allow the military to continue enforcing Don’t Ask, Don’t Tell, pending the DOJ’s appeal.

The federal government filed the request with Judge Virginia Philips, who earlier this week ordered the military to stop enforcing DADT, to stay her injunction pending appeal.

The DOJ also filed a notice of appeal, meaning they will appeal the ruling. According to court documents, the lawyers say they may also seek to expedite appeal.The DOJ, in its request, points out early on that President Obama supports the repeal of DADT.

“The President strongly supports repeal of the DADT statute that the Court has found
unconstitutional, a position shared by the Secretary of Defense and the Chairman of the Joint Chiefs of Staff,” it reads.

“As the President has stated previously, the Administration does not support the DADT statute as a matter of policy and strongly supports its repeal. However, the Department of Justice has long followed the practice of defending federal statutes as long as reasonable arguments can be made in support of their constitutionality, even if the Administration disagrees with a particular statute as a policy matter, as it does here,” it says.

But, the government argues, instituting repeal abruptly would disrupt the Pentagon’s ongoing policy review of DADT, to be completed in December.

“The immediate implementation of the injunction would disrupt this review and frustrate the Secretary’s ability to recommend and implement policies that would ensure that any repeal of DADT does not irreparably harm the government’s critical interests in military readiness, combat effectiveness, unit cohesion, morale, good order, discipline, and recruiting and retention of the Armed Forces,” the request reads. “Accordingly, a stay should be entered while defendants appeal the Court’s entry of a worldwide injunction.”

“The precipitous changes to military policy required by the Court’s injunction would result in a host of significant and immediate harms to the recognized public interest in ensuring that the Nation has strong and effective military operations,” the government argues.

In the request, the DOJ says if it doesn’t get a stay by noon Pacific Time on Monday, it will file for a stay with the Ninth Circuit Court of Appeals, which will hear any potential appeal.

You can read the request, and the proposed order, here:

DOJ Request for Stay of DADT Injunction

Doj Proposed Order

The policy, which bars openly gay men and women from serving in the military, has been in limbo since Philips issued the order on Tuesday. Today, White House Press Secretary Robert Gibbs told reporters that the Department of Defense is working on guidance “for the entire chain of command that should be ready and out soon.”

Until a stay is granted, the armed forces are more than likely obeying the injunction. The Servicemembers Legal Defense Network, which defends troops discharged under DADT, today published an email from Richard C. Harding, the judge advocate general of the Air Force. In the email, Harding advises that the military “will abide by [the injunction’s] terms.”

The Pentagon confirmed that the email was from Harding.

“The Department of Defense will of course obey the law, and the email noted that, in the meantime, the Department will abide by the terms in the court’s ruling, effective as of the time and date of the ruling,” Pentagon spokeswoman Cynthia Smith told TPM.

(Ed. note: This post has been edited since it was published.)

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