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After Repeal, What’s Next for ‘Don’t Ask, Don’t Tell’?

July 13, 2011 at 12:00 AM EDT
It's been more than six months since Congress repealed the "don't ask, don't tell" law barring openly gay and lesbian people from serving in the U.S. military, but a new policy isn't in place yet. Judy Woodruff discusses what's ahead with Time magazine's Mark Thompson and the Servicemembers Legal Defense Network's Aubrey Sarvis.

JUDY WOODRUFF: Next, an update on gays serving openly in the U.S. military.

It’s been more than six months since Congress repealed the 1993 “don’t ask, don’t tell” law barring openly gay service. The Pentagon is working on plans to implement the new policy. But, last Friday, a U.S. Court of Appeals ruled the old law unconstitutional. That court gave the Obama administration until next week to accept or appeal.

Meanwhile, a top Pentagon civilian official has told the armed services to process applications without regard to sexual orientation.

Well, for more now on what’s next for current and prospective openly gay service members, we go to Mark Thompson. He is “TIME” magazine‘s Washington deputy bureau chief. And Aubrey Sarvis, he is the executive director of the Servicemembers Legal Defense Network, which advocates for lifting the ban on gays in the military.

We thank you both for being here.

Mark Thompson, to you first.

So, where do things stand with “don’t ask, don’t tell?”

MARK THOMPSON, TIME: Well, Judy, we basically have two trains rushing to the same station, I think.

In a matter of weeks, “don’t ask, don’t tell” will be history. One train is the Pentagon certification process, which has been under way now for several months. And it’s designed to train troops to accept openly gay men and women in their ranks. Basically, the Pentagon made clear today, you know, we don’t have to train 100 percent of our troops to certify. We just have to be sure we’re going to be able to get to that destination.

And it seems like they are on the verge of doing that. And in the courts, the courts in California — the court in California, the appellate court, has basically said, as of Friday, as you pointed out, this law is unconstitutional. The world hasn’t fallen apart in the last several days because “don’t ask, don’t tell” is no longer being enforced.

But the fact is that now, in our military, it is not being enforced. And the question is going to be which one is ultimately going to carry the day. And maybe they will merge and it will happen together.

JUDY WOODRUFF: Well, it sounds confusing to people who don’t follow this closely, Aubrey Sarvis. Do you share this sort of two-track analogy here?

AUBREY SARVIS, Servicemembers Legal Defense Network:  Oh, absolutely.

Years ago at SLDN, we decided to file litigation.

JUDY WOODRUFF: This is the Servicemembers Legal…

AUBREY SARVIS: Servicemembers Legal Defense Network — to file litigation challenging the constitutionality of “don’t ask, don’t tell.”

At the same time, we made the decision to lobby Congress, the White House, and the Pentagon for repeal, to move legislation to repeal this law. But back to Mark’s point, it’s true we have the Court of Appeals for the Ninth Circuit saying to the Pentagon on Monday, come back and tell us if you and the Justice Department intend to continue arguing that “don’t ask, don’t tell” is constitutional.

And, as Mark also said, that same court a few days earlier stopped the Pentagon from enforcing “don’t ask, don’t tell.” But there is confusion on the ground. Service members are confused, and I would suggest that the court is somewhat confused.

JUDY WOODRUFF: So, what — how is the administration responding to this court ruling? Is it — has it said yet?

MARK THOMPSON: No. Basically, you have got a ping-pong ball here, and the Justice Department and Defense Department keep batting it back and forth. They’re trying to figure it out.

If you read — some folks are saying, I think the administration will fight the court ruling and will. But, fundamentally, that’s going to be a problem, because why are they going to fight it to maintain it, when, the day after tomorrow, they’re likely to get rid of it?

So I think, politically, ultimately, they’re going to have to decide that, you know, this really isn’t worth the fight. And they can probably do that if they decide to certify before the 10-day deadline in the court comes next week.

JUDY WOODRUFF: Certify what?

MARK THOMPSON: That they are ready to allow openly gay men and women to serve and repeal “don’t ask, don’t tell.”

JUDY WOODRUFF: So, they’re sort of jumping ahead of what the court…

AUBREY SARVIS: They need to certify to the Congress that they are ready to issue this letter to Capitol Hill.

And I think the letter should also be sent to the Court of Appeals in the Ninth Circuit. And this certification is very simple. It’s very straightforward. Allowing gays and lesbians to serve in the military will have no adverse impact upon the armed forces. The solution here, Mark, is the certification. And that should be issued in days. Then the 60 days will run, and that will be the end of “don’t ask, don’t tell.”

JUDY WOODRUFF: Has it taken an unusually — a longer time than was expected to get this certification?

AUBREY SARVIS: I think the certification process has become overly bureaucratic, protracted. And, to some extent, this delay process has caught up with the Pentagon.

JUDY WOODRUFF: What do you mean?

AUBREY SARVIS: Well, I think — my reading of what was going on to some extent, and the court’s order was, if you’re going to continue to enforce “don’t ask, don’t tell” we’re issuing this order to stop you from doing so, and not only that. You need to come back in 10 days and tell us if you intend to argue that this law is still constitutional.

JUDY WOODRUFF: Is the administration position in all this, Mark Thompson, clear or not?

MARK THOMPSON: Well, no, it isn’t. Plainly, that’s part of the problem.

But, I mean, to go back to Aubrey’s point of this as being overly bureaucratic and protracted, this is the U.S. Department of Defense. They don’t this kind of thing fast.


MARK THOMPSON: And I think the Pentagon has taken some pride in the process they set up and the surveying they did. I mean, if you talk to gay troops, as I have, sure, they want it done faster, but they seem pleased ultimately that they know the destination they’re bound for. And so most of them are keeping pretty quiet about it.

JUDY WOODRUFF: So, what is the situation right now, Aubrey Sarvis? If you’re someone who is interested in enlisting in the armed services and you’re openly gay, are you welcome to do that or not? What is your organization…


We’re hearing from individuals in the field who are going down to recruiting stations to enlist their applications are being accepted. They are being processed. We heard this afternoon from the Navy that they are receiving those. And those service members, I believe, will be welcomed.

But the answer here is 203 days for this certification process is too long. There’s confusion among the troops, and we need to end it. The fact that you would have to ask that question indicates that not only do the individuals who want to join are not clear. Some of the recruiting stations are not clear on their marching orders. Again, the answer is certification in days, not weeks.

JUDY WOODRUFF: Is it — do you have the same answer to that question? For an openly gay individual, can they or can they not enlist?

MARK THOMPSON: Yes, they can, but a couple of things.

Number one, “don’t ask, don’t tell” is still on the books, so it can always come back to bite you. Some of the groups are advising folks keep your mouth shut. So long as this law is on the books, do not come in broadcasting that you’re gay. The law will be changed soon enough, and then you can be open.

AUBREY SARVIS: And that is our legal counsel to service members: Do not come out today. We still do not have finality.

JUDY WOODRUFF: So, what are we looking at in terms of a timetable here? You both have talked about days, weeks? I mean, what — what do you — what’s the sense, Mark?

MARK THOMPSON: My sense is that I think the 10-day clock runs out a week from tomorrow. I think certification will happen before then.


AUBREY SARVIS: It may not. I think — I think it should. It could be late July. It could be early August. But we do need to end this confusion, the sooner the better.

JUDY WOODRUFF: It sounds like we may have to revisit this again…

AUBREY SARVIS: May have to do that.

JUDY WOODRUFF: … and ask some of these same questions again.

Aubrey Sarvis, Mark Thompson, we thank you both.