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MEDIA UPDATE: The Latest on “Don’t Ask, Don’t Tell” Repeal

This on-the-record email is for media and others monitoring the repeal of “Don’t Ask, Don’t Tell” (DADT):

BREAKING RIGHT NOW: U.S. Rep. Barney Frank writes to U.S. Air Force Secretary and strongly urges him to end the discharge proceedings against Lt. Col. Victor Fehrenbach. Read the letter to the Secretary now: http://bit.ly/aBndIZ

FOR THE LATEST UPDATES: www.SLDN.org/Victor

THE NEW YORK TIMES TODAY: Officer Gets More Time to Fight Discharge Under ‘Don’t Ask’

--By James Dao: “Lawyers for an Air Force officer facing possible discharge under the military’s ban on homosexuality, Lt. Col. Victor J. Fehrenbach, have reached an agreement with the government that will give him time to fight a discharge in federal court.

--“Under the agreement released Monday, the Air Force said that it would not make a decision on Colonel Fehrenbach before Aug. 27 and that if it decided to discharge him, it would take no action for 21 days after notifying him of that decision.

--“Colonel Fehrenbach asserts that discharging him under the military’s “don’t ask, don’t tell” policy would violate his rights and cause him irreparable harm.” Continue reading: http://nyti.ms/dyu2II

U.S. DEPARTMENT OF JUSTICE, U.S. AIR FORCE REACH FEDERAL COURT AGREEMENT WITH LT. COL. FEHRENBACH

--Servicemembers Legal Defense Network (SLDN) and Morrison & Foerster LLP, representing their client, Lt. Col. Victor Fehrenbach, reached an agreement Monday with the U.S. Department of Justice, and the U.S. Air Force, on the pending request for a temporary restraining order.

--The agreement prevents the Air Force from discharging Lt. Col. Fehrenbach under “Don’t Ask, Don’t Tell” (DADT), the discriminatory law barring gay and lesbian service members from serving openly and honestly, until the Court can schedule a hearing on the motion for a preliminary injunction.

--Attorneys for Lt. Col. Fehrenbach filed a motion in U.S. District Court for the District of Idaho last Wednesday seeking a court order preventing the Air Force from discharging Lt. Col. Fehrenbach, arguing that the government cannot establish that his continued service on active duty hinders “morale, good order and discipline, and unit cohesion.”

STATEMENT FROM SLDN’S AUBREY SARVIS:

--“The agreement recognizes the immediate harm to Lt. Col. Fehrenbach and insures that he will eventually get to make his case at a full blown hearing without losing his job. This agreement is a victory for Lt. Col. Fehrenbach and our nation.

--“The Air Force can still do the right thing and retain Lt. Col. Fehrenbach under the Pentagon’s own revised regulations on ‘Don’t Ask, Don’t Tell.’ The Senate needs to act next month to get rid of this antiquated law that dishonors some of our finest and most talented service members.” Continue reading: http://bit.ly/dAYZpH

AMERICABLOG: WHAT THIS MEANS / THREE KEY POINTS:

--1) The Secretary (or his designee) cannot reach a discharge decision until after August 27;

--2) If the decision is discharge, Fehrenbach will have 21 day notice. He can move forward with an injunction in that time frame.

--3) Air Force and Department of Justice (DOJ) are required to notify the court of their actions. Continue reading: http://bit.ly/aGiavS

NATIONAL AP WIRE: Air Force, pilot reach agreement in 'don't ask, don't tell' case

--“A military pilot reached an agreement Monday with the U.S. Air Force to prevent his discharge under the "don't ask, don't tell" policy, which prohibits openly gay men and women from serving in the military.

--“The Servicemembers Legal Defense Network (SLDN) said Lt. Col. Fehrenbach, a 19-year military member who has been decorated for his combat valor in Iraq, cannot be discharged until the Air Force brings the request to oust him from the military to a court hearing.

--"The agreement recognizes the immediate harm to Lt. Col. Fehrenbach and insures that he will eventually get to make his case at a full blown hearing without losing his job," SLDN Executive Director Aubrey Sarvis said in a statement.

--“Fehrenbach, represented by SLDN, an advocacy group seeking equality for gay men and women serving in the military, filed a federal lawsuit in Idaho last week. They argued that the government cannot establish that Fehrenbach's continued service on active duty hinders "morale, good order and discipline, and unit cohesion." Continue reading: http://bit.ly/bnzk4W

FROM CNN.com TODAY: Murdered soldier's parents: Repeal 'don't ask, don't tell'

--SLDN’s Susan LaBombard recently flew to Missouri where she visited with Pat and Wally Kutteles and has been working with them for the past few weeks on this opinion piece published today by CNN.

--Pat and Wally are the parents of Pfc. Barry Winchell, who was murdered 11 years ago at Fort Campbell, Kentucky.

--“The coffee was brewing and we were just starting our day when the telephone rang the morning of July 5, 1999. It was a call that every parent prays never will come. The Army colonel was calling from Fort Campbell, Kentucky, where our son was based in the U.S. Army. A fellow soldier had attacked our son, Barry Winchell. He had been taken to a civilian hospital in Nashville, Tennessee.

We raced to the Kansas City airport. When we arrived at the hospital, Barry was clinging to life. His face was unrecognizable. Contrary to what the colonel had said on the telephone, Barry had not been kicked in the head by the other soldier. He had been beaten with a baseball bat as he slept in the barracks. The doctor said he had irreparable brain damage and recovery was unlikely.

Barry had been a victim of constant, vicious harassment after another soldier -- one of two involved in his murder -- started a rumor that he was gay.” Continue reading: http://bit.ly/aIHbvw

WASHINGTON POST: Air Force Officer Fights Discharge Under Military DADT

--By Ed O'Keefe: “One of the highest-ranking military officers investigated under the military's ‘don't ask, don't tell’ policy is trying to block the Air Force from discharging him by testing a legal argument that requires the federal government to prove a service member's homosexual conduct has been damaging to others.

--“Air Force Lt. Col. Victor Fehrenbach filed a request for a temporary restraining order in U.S. District Court in Idaho late Wednesday. He argued that a discharge will cause him irreparable harm and that the government cannot prove that his continued service hinders "morale, good order and discipline, and unit cohesion.”

--“Fehrenbach's discharge should remind gay and lesbian service members that ‘don't ask, don’t tell’ remains law until Congress repeals the policy, SLDN Executive Director Aubrey Sarvis said.

--“The House included a repeal of ‘don't ask, don't tell’ in its version of the annual defense spending bill this year. The Senate may take up its version shortly after the body's August recess, according to aides. Continue reading: http://bit.ly/cWHsFR

THE NEW YORK TIMES: Officer Sues to Block His Discharge Under Gay Ban

--By James Dao: “In early 2008, just eight days before he was to deploy in support of the war in Afghanistan, Lt. Col. Victor Fehrenbach, a decorated Air Force flight officer, was told he was under investigation on charges of sexually assaulting a civilian and of violating the military’s ban on homosexuality.

--“He was placed on desk duty at Mountain Home Air Force Base in Idaho. Within three weeks, the sexual assault allegation was dismissed for lack of evidence. But the Air Force investigation into his sexuality continued. Now, just a year from completing his 20th year in the military, Colonel Fehrenbach, 40, believes he is about to be discharged under the policy known as “don’t ask, don’t tell.” He would be among the highest-ranking service members discharged under the policy.

--For advocates of abolishing the ban against gay men, lesbians and bisexuals serving openly, Colonel Fehrenbach’s case has become something of a line in the sand. Though President Obama has called for ending the ban and Congress has begun moving in that direction, gay service members continue to face investigations and discharge, albeit at a lower rate than in past years.

--Lawyers for Colonel Fehrenbach assert that his case is among the most egregious applications of the policy in their experience.

--“The evidence is that he is a benefit to the Air Force and to his unit,” said M. Andrew Woodmansee, a San Diego-based lawyer who is serving as co-counsel for Colonel Fehrenbach, along with the Servicemembers Legal Defense Network, a nonprofit group representing gays in the military.

--Continue reading: http://nyti.ms/czpkRW

STATEMENT BY SLDN’S AUBREY SARVIS:

--“Our nation is on the verge of firing a highly decorated combat aviator, an American hero. The Air Force Secretary can do the right thing and retain Lt. Col. Fehrenbach under the Pentagon’s own recently revised regulations on ‘Don’t Ask, Don’t Tell.’

--“Lt. Col. Fehrenbach signed up nearly 19 years ago willing to risk all and die for his country, flying nearly 90 combat missions in Iraq, Afghanistan, and Kosovo. Why and how the hell do we end up firing our best and brightest when we’re fighting in two wars?

--“If Secretary Donley does not step in, this nation will lose a service member worth $25 million in training whose skill sets are desperately needed today. The discharge of Lt. Col. Fehrenbach would dramatically underscore that ‘Don’t Ask, Don’t Tell’ is still the law and all gay and lesbian service members should be on notice.

--“Clearly there is an urgent need for the Senate to act on legislation currently pending that would allow for repeal.”

STATEMENT BY LT. COL. VICTOR FEHRENBACH:

--“I have been waiting more than two years for the Air Force to do the right thing by letting me continue to proudly serve my country. To say that I’m disappointed with where things stand would be a monumental understatement.

--“I have given my entire adult life to the Air Force that I love. I have deployed six times and risked my life for my country. In the two years that I’ve been sitting at my desk rather than inside my jet, I’ve offered to deploy numerous times.

--“I’m ready, willing, and able to deploy tomorrow, but I’m barred from deployment, because of this unjust, discriminatory law. Meanwhile, moms and dads, sons and daughters, and my friends go back for the third, fourth, fifth deployments. While our country is engaged in two wars, my service is needed now more than ever.”

WATCH LT. COL. FEHRENBACH’S INTERVIEW ON MSNBC’S THE RACHEL MADDOW SHOW: http://bit.ly/9mKQ9T

SLDN CONFIRMS LIST OF KEY SENATORS IN UPCOMING REPEAL VOTE:

--Blanche Lincoln (D-Ark.);
--Mark Pryor (D-Ark.);
--Richard Lugar (R-Ind.);
--Jon Tester (D-Mont.);
--Max Baucus (D-Mont.);
--Mike Johanns (R-Neb.);
--John Ensign (R-Nev.);
--Judd Gregg (R-N.H.);|
--Byron Dorgan (D-N.D.);
--Kent Conrad (D-N.D.);
--George Voinovich (R-Ohio);
--Tim Johnson (D-S.D.);
--Mark Warner (D-Va.).

LIST OF KEY STATES IN FIGHT FOR REPEAL: These states have senators whose votes on DADT repeal are critical:

--Arkansas
--Indiana
--Montana
--Nebraska
--Nevada
--New Hampshire
--North Dakota
--Ohio
--South Dakota
--Virginia

SLDN’S AUBREY SARVIS VIA STATEMENT TODAY:

--“We need supporters to contact their senators and tell them to repeal ‘Don’t Ask, Don’t Tell’ and follow the lead of Chairman Carl Levin who will be managing the defense bill on the floor.

--“It is critical that we beat back any filibuster threat, defeat attempts to strike repeal, and defeat any crippling amendments.

--“Senators need to hear from us now, especially in the 10 key states where our combined SLDN and HRC field teams are working now.”

--Continue reading: http://bit.ly/8YXH5J

SENATE TIMELINE UPDATE: The Advocate’s Kerry Eleveld:

--“As the days dwindle before the Congressional August recess commences on August 9, ‘don’t ask, don’t tell’ repeal advocates are angling for a firm commitment from Senate majority leader Harry Reid for a September vote on the Defense authorization bill, to which the repeal measure is attached.

--“We are asking of the majority leader the same thing that we believe Senator [Carl] Levin is asking and that is to schedule the Defense authorization bill shortly after the August recess,” said Aubrey Sarvis, executive director of Servicemembers Legal Defense Network. “We would like him to make that announcement before the Senate leaves town at the end of next week.”

--A spokesperson for Reid said the majority leader does anticipate a vote being taken in September but declined to give a specific date. “We expect to have a vote in September,” said Jim Manley.

SLDN FIGHTING ANY “DELAY / KILL” TACTICS BY OPPONENTS:

-- Even with a filibuster proof 60-vote majority, SLDN and our repeal allies will be closely watching for any crippling amendments offered on the floor and a “motion to strike” that could allow repeal opponents to remove the repeal language from the defense bill.

--SLDN is working closely with Senators Joseph Lieberman and Carl Levin to guard against any attempts to strike repeal or weaken its provisions.

QUESTION AND ANSWER REPEAL GUIDE:

--When will the Senate vote on the floor?

--When does the Pentagon Working Group submit its report?

--What is the certification process?

--How come the law won’t immediately be repealed?

--Why will the discharges continue after the President signs the bill?

--Find the answers: http://bit.ly/b8ekAf

WHY SLDN IS PUSHING FOR AN EXECUTIVE ORDER AFTER CERTIFICATION:

--Merely repealing DADT won't ensure that lesbian, gay, and bisexual service members can serve free of discrimination based on their sexual orientation. Policies and regulations would need to be written and put in place. SLDN will encourage the President to issue an executive order protecting service members from discrimination based on their actual or perceived sexual orientation.

--This gives the President the opportunity to show strong leadership by adding non-discrimination language for sexual orientation to the uniform side of the military via Executive Order.

EXECUTIVE ORDER BREAKDOWN: Previous non-discrimination orders

--EO 9981 (1948) issued by President Harry Truman prohibited discrimination on the basis of race, color, religion or national origin.

--EO 11478 (1969) prohibited discrimination in employment within the federal government based on race, color, religion, sex, national origin, handicap, or age. It applied to all civilian employees, including those in the Defense Department.

--EO 13087 (1998) issued by President Bill Clinton added sexual orientation in federal hiring guidelines has been successful and set a durable precedent. OPM issued a guidance booklet in 1999, http://www.opm.gov/er/orientation.htm.

10 PERCENT OF TROOPS RESPOND TO PENTAGON SURVEY:

--Stars and Stripes’ Leo Shane: “Only about 10 percent of the 400,000 ‘don't ask, don't tell’ surveys sent out three weeks ago have been returned, and Pentagon officials are lobbying troops to fill out the rest before the Aug. 15 deadline set for the research.

--“The survey, featuring more than 100 questions on perceptions of troops’ morale and behavior before and after a repeal of the ‘don’t ask, don’t tell’ law, is designed to give a Defense Department working group a better sense of service members’ concerns about allowing openly gay troops in the ranks.

--“But gay rights groups have questioned the value of the survey, and the Servicemembers Legal Defense Network warned closeted gay troops against participating in the exercise. Even though the survey will be conducted by e-mail through an outside contractor, SLDN officials said that promise of anonymity didn’t offer enough security for troops who still could be kicked out under the ‘don’t ask, don’t tell’ law.

--Continue reading: http://bit.ly/dtKtnt

TIME MAGAZINE: Why Is the Military Polling the Troops About Gays?

--By Mark Thompson: The Servicemembers Legal Defense Network, perhaps the leading gay-rights group dealing with "Don't ask, don't tell," took a tough line against the survey. "No survey of the troops should be done," director Aubrey Sarvis said Friday.

--"Surveying the troops is unprecedented — it did not happen in 1948 when President Truman ended segregation and it did not happen in 1976 when the service academies opened to women. Even when the military placed women on ships at sea, the Pentagon did not turn to a survey on how to bring about that cultural change."

--Continue reading: http://bit.ly/bt4CU7

THE ADVOCATE: SLDN Pressures Navy Secretary In Gay Abuse Case

--By Kerry Eleveld: Servicemembers Legal Defense Network is calling on the secretary of the Navy to discharge a soldier with a “less than honorable” status and reduced retirement pay after an internal investigation concluded the sailor had, in fact, abused a subordinate sailor using antigay and homophobic hazing.

--Petty Officer Joseph Rocha, a gay man who remained closeted during his service and is now a client of SLDN’s, claimed that he was abused over the course of about two years, from 2004 to 2006, by his superior and fellow sailors for his perceived sexual orientation while serving in the Navy in Bahrain.

--In January of 2007 the Navy’s investigation of Rocha’s commander, Chief Petty Officer Michael Toussaint, turned up 21 findings of fact documenting numerous incidents of abuse and harassment that included employing homophobic epithets and forced simulation of gay sex acts. Following the investigation, Toussaint was censured and forced into early retirement.

--In a response letter dated July 1, 2010, SLDN legal director Aaron Tax noted, “It is difficult to comprehend why these factors, individually, or even when taken together, excuse the abuse Rocha and others suffered at the hands of Toussaint. These abuses include being locked inside of a feces-filled dog kennel, being forced to simulate sex acts with another man, and being spanked. The fact that time has passed, that Toussaint, like countless others, has recently deployed, and that he is close to retirement, cannot and should not excuse his actions.” Continue reading: http://bit.ly/daVhz3

STARS AND STRIPES: SLDN wants harsher penalties in hazing scandal

--By Leo Shane: An excerpt of the Navy's investigation report into the Bahrain canine unit hazing scandal. Officials at the Servicemembers Legal Defense Network are demanding the Secretary of the Navy step in before a senior enlisted sailor dubbed the ringleader of the hazing scandal at the Navy’s Military Working Dog Division in Bahrain is allowed to retire quietly and at full pay.

--Last fall Senior Chief Petty Officer Michael Toussaint was removed from his leadership post within Naval Special Warfare Group 2 and forced into a retirement track after a two-year investigation confirmed 93 instances of hazing and sex crimes inside the canine unit during Toussaint’s tenure as commander, from 2004 to 2006. That included crimes against former Petty Officer 3rd Class Joseph Rocha, who was suspected to be gay and was forced by superiors to simulate oral sex on other men.

--In February a retirement board recommended that Toussaint retire this summer at full pay in his current rank, which he was promoted to following his time in Bahrain. Navy Secretary Ray Mabus at the time told SLDN (a gay rights advocacy group) that he supported both the administrative action taken against Toussaint and the retirment recommendation.

--But this week, with Toussaint's separation appearing imminent, SLDN legal director Aaron Tax called that insulting: "The Navy appears to be sending the message that a superior may abuse those in his or her chain of command with few repercussions.” Continue reading: http://bit.ly/cyOKQH

CNN PROFILES SLDN / INTERVIEWS ACTIVE-DUTY SERVICE MEMBER WHO MADE 10,000th “CALL FOR ASSISTANCE” TO SLDN HOTLINE: http://bit.ly/b7RNMr

ACTIVE-DUTY SERVICE MEMBERS: Gay and lesbian service members with questions on repeal and how this impacts them are urged to contact the SLDN hotline to speak with a staff attorney: 202-328-3244 x100.

WARNING TO SERVICE MEMBERS – “DON’T ASK, DON’T TELL” IS STILL THE LAW: SLDN issued a national action alert warning gay and lesbian service members that they can still be fired under DADT.

--Aubrey Sarvis: “While the votes in the House and the Senate Armed Services Committee are historic, it is important for all gay and lesbian, active-duty service members, including those in the reserves and the national guard, to know they’re at risk. They must continue to serve in silence under the ‘Don’t Ask, Don’t Tell’ law that remains on the books.”

--Read the warning / help spread the word: www.sldn.org/StillAtRisk.

MSNBC’S RACHEL MADDOW AND NEW YORK DAILY NEWS HIGHLIGHT WARNING TO SERVICE MEMBERS:

--Watch The Rachel Maddow Show on the warning: http://bit.ly/ciufIW

--Read the New York Daily News on the warning: http://bit.ly/chTOTX

SLDN ISSUES VIRGINIA ACTION ALERT HOLDING SEN. WEBB ACCOUNTABLE FOR ANTI-EQUALITY VOTE:

--SLDN issued a Virginia action alert to members and supporters urging them to write letters to the editor and opinion pieces holding Sen. Jim Webb accountable for his Senate Armed Services Committee vote against repeal on May 27.

--Aubrey Sarvis: “We hope that Virginians will not give Senator Jim Webb a pass on his vote in the Senate Armed Services Committee to keep 'Don't Ask, Don't Tell' on the books. His vote was against equality, and fair-minded Virginians should take loud and strong exception. It is our hope that Sen. Mark Warner of Virginia will do the right thing when the defense bill is debated and voted on the Senate floor.” Continue reading: http://bit.ly/cpj5hO

PENTAGON: INVESTIGATIONS AND DISCHARGES UNDER DADT WILL CONTINUE

--A Pentagon spokesperson recently confirmed to the Denver Post that investigations and discharges of gay and lesbian service members will continue. Cynthia Smith, a Pentagon spokesperson, said: "The law is still in effect, and if someone were to out themselves, we would have to begin the discharge process."

--Aubrey Sarvis: “The Pentagon is being very clear that they will continue the discharges and gay and lesbian active-duty service members, including those in the reserves and the national guard, remain at risk. Even with the recent votes in the U.S. House of Representatives and the Senate Armed Services Committee, the discharges are continuing. Qualified men and women of our armed forces will continue to be fired from their jobs and it is putting our national security at risk. And even despite the new ‘more humane’ Pentagon Instructions, we are aware of an ‘O-7’ – a one-star general – signing off on a discharge very recently. Congress and the Pentagon need to stay on track to get repeal finalized, hopefully no later than first quarter 2011.”

SLDN ENDS NATIONAL ONLINE LETTER CAMPAIGN WITH LOVE STORY FROM WWII SOLDIER:

--“Stories from the Frontlines: Letters to President Barack Obama” was launched to underscore the urgent need for congressional action and presidential leadership in the fight to repeal “Don’t Ask, Don’t Tell” (DADT). With the House and Senate votes, the series was brought to a close last week.

--The final letter in this series was written by a World War II soldier to another on the occasion of their anniversary. It was published in September 1961 by ONE Magazine – an early gay magazine based out of Los Angeles.

--Read the letter by visiting: www.sldn.org/letters.

CNN POLL: Nearly 8 in 10 favor gays in the military

--Most Americans say people who are openly gay should be allowed to serve in the U.S. military, according to a new national poll.

--A CNN/Opinion Research Corporation survey released Tuesday indicates that 78 percent of the public supports allowing openly gay people to serve in the military, with one in five opposed.

--"Support is widespread, even among Republicans. Nearly six in ten Republicans favor allowing openly gay individuals to serve in the military," says CNN Polling Director Keating Holland. "There is a gender gap, with 85 percent of women and 71 percent of men favoring the change, but support remains high among both groups." Continue reading: http://bit.ly/amCVZ8

LETTER FROM FORMER JCS: General John Shalikashvili fired back at a letter from the Service Chiefs that was being circulated by Senator John McCain. Read the letter: http://bit.ly/abTmzq

ADMIRAL MICHAEL MULLEN, CHAIRMAN OF THE JOINT CHIEFS OF STAFF SUPPORTS REPEAL:

--At the Senate Armed Services Committee hearing February 2 – the first to discuss repeal -- Chairman of the Joint Chiefs of Staff Admiral Michael Mullen made it clear that DADT does not serve in the best interest of our men and women in uniform: "I cannot escape being troubled by the fact that we have in place a policy which forces young men and women to lie about who they are in order to defend their fellow citizens. For me, personally, it comes down to integrity - theirs as individuals and ours as a nation.”

--From The Hill’s Roxana Tiron: “The nation’s senior military officials removed a huge obstacle to gays serving openly in the military by telling Congress on Tuesday that they support President Barack Obama’s decision to repeal the ‘Don’t ask, don’t tell’ law.” LINK: http://bit.ly/bMks1Z

KEY VOICES SUPPORTING REPEAL:

--Current and former military and government leaders are fully behind repeal:

o Secretary of Defense Robert Gates;
o Chairman of the Joint Chiefs of Staff Admiral Michael Mullen;
o Gen. Raymond Odierno;
o Gen. David Petraeus;
o Vice President Richard Cheney;
o President Bill Clinton;
o Secretary of Defense William Cohen;
o Ret. Marine Corps Gen. James Jones;
o General John Shalikashvili
o General Colin Powell

104 GENERALS AND ADMIRALS SUPPORT REPEAL:

--In addition, a letter signed by 104 retired admirals and generals was released in late 2008 and included a strong call for repeal: http://bit.ly/dkHqtD

##

REPORTER GUIDE:

The Path Forward on the Repeal of “Don’t Ask, Don’t Tell”

WASHINGTON, D.C. – Servicemembers Legal Defense Network (SLDN), a national, legal services and policy organization dedicated to ending "Don't Ask, Don't Tell" (DADT), released a guide today on the path to repeal.

THE SENATE VOTE: 

• After the U.S. House of Representatives passed the National Defense Authorization Act (NDAA), the U.S. Senate is now poised to take it up. An amendment that would allow for the repeal of “Don’t Ask, Don’t Tell” was successfully attached to the NDAA on the House floor (234 to 194) and in the Senate Armed Services Committee (16-12) on May 27.

• Senate Armed Services Committee Chairman Carl Levin (D-Mich.) told the Washington Blade on July 23 that he’s expecting the full Senate to take up the NDAA, which includes repeal, in September after lawmakers return from August recess.

• SLDN and other repeal advocates are working to shore up a filibuster proof majority, 60 Senate votes, to proceed to consideration of the NDAA. While this is traditionally a “must-pass” piece of legislation, the White House has threatened to veto the bill due to spending disagreements unrelated to the repeal of DADT.

• Even with a filibuster proof 60-vote majority, SLDN and our repeal allies will be closely watching for any crippling amendments offered on the floor and a “motion to strike” that could allow repeal opponents to remove the repeal language from the defense bill.

o SLDN is working closely with Senators Joseph Lieberman and Carl Levin to guard against any attempts to strike repeal or weaken its provisions.

o For instance, we will vigorously oppose any amendment to expand the certification process in the “compromise." Opponents of open service may be considering an amendment that would require all of the Joint Chiefs to sign off on the certification process. This killer amendment is designed to delay open service for years.

CONFERENCE COMMITTEE:

• After passage in the Senate, repeal advocates will focus on the conference committee where staff work would begin shortly thereafter. The committee will be tasked with resolving any differences in the House and Senate versions of the NDAA. At this time, the language in the repeal amendment for DADT is the same in both chambers – a good thing.

• With identical amendment language in both chambers, it is out of the scope of conference. However, SLDN does not underestimate the “Big Four.” The “Big Four” are the chairs and ranking members in the House and Senate Armed Services Committees. Traditionally, the significant policy differences are resolved by the chairs and ranking members. Only one of the four supports repeal: Senate Chairman Carl Levin. The ranking member in the Senate, Sen. John McCain, and House Chairman Ike Skelton and ranking member Rep. Howard McKeon, do not.

• The conference committee will produce a conference report and we expect a vote in both the House and Senate chambers on that report, likely in November or December.

THE PENTAGON WORKING GROUP REPORT:

• On or before December 1, the Pentagon Working Group is required to submit its report to Congress and the Secretary of Defense. The working group was established to author a report on “how” to implement repeal, not “if” repeal should happen.

PRESIDENTIAL BILL SIGNING:

• When the President signs the NDAA – with the repeal amendment attached – nothing would happen. “Don’t Ask, Don’t Tell” will still be the law. Service members will still be discharged. Read SLDN’s warnings: www.sldn.org/StillAtRisk.

CERTIFICATION:

• At some point after the Pentagon Working Group submits its report, the President would transmit to the congressional Armed Services Committees a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, stating each of the following:

o (A) That the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff have considered the recommendations contained in the report and the report’s proposed plan of action.

o (B) That the Department of Defense has prepared the necessary policies and regulations to exercise the discretion provided by the amendments made by subsection (f).

o (C) That the implementation of necessary policies and regulations pursuant to the discretion provided by the amendments made by subsection (f) is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.

• “Don’t Ask, Don’t Tell” will still be the law at this point. Service members will still be discharged. Read SLDN’s warnings: www.sldn.org/StillAtRisk.

REPEAL EFFECTIVE 60 DAYS AFTER TRANSMITTAL:

• After the President transmits written certification to the congressional Armed Services Committees, full repeal of “Don’t Ask, Don’t Tell” would be effective 60 days later.

EXECUTIVE ORDER BY THE PRESIDENT:

• Merely repealing DADT won't ensure that lesbian, gay, and bisexual service members can serve free of discrimination based on their sexual orientation. Policies and regulations would need to be written and put in place. SLDN will encourage the President to issue an executive order protecting service members from discrimination based on their actual or perceived sexual orientation.

o This gives the President the opportunity to show strong leadership by adding non-discrimination of sexual orientation to the uniform side of the military via Executive Order.

o EO 9981 (1948) issued by President Harry Truman prohibited discrimination on the basis of race, color, religion or national origin.

o EO 11478 (1969) prohibited discrimination in employment within the federal government based on race, color, religion, sex, national origin, handicap, or age. It applied to all civilian employees, including those in the Defense Department.

o EO 13087 (1998) issued by President Bill Clinton added sexual orientation in federal hiring guidelines has been successful and set a durable precedent. OPM issued a guidance booklet in 1999, http://www.opm.gov/er/orientation.htm.

SPOKESPEOPLE AVAILABLE: If you would like to speak to a discharged or former service member, or SLDN executive director Aubrey Sarvis – contact Trevor Thomas: 616-430-2030 or trevor@sldn.org.

SLDN FREE HOTLINE: Gay and lesbian service members with questions on repeal are urged to contact the SLDN hotline to speak with a staff attorney: 202-328-3244 x100.

Servicemembers Legal Defense Network (www.sldn.org) is a national, non-profit legal services and policy organization dedicated to ending “Don’t Ask, Don’t Tell.” A journalists’ guide is available here.

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