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.

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

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: http://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:

(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.

(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).

(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: http://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.

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.

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.

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 .(JavaScript must be enabled to view this email address).

SLDN FREE HOTLINE: Gay, lesbian and bisexual 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.