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

October 13, 2010 at 4:56 PM EST
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A federal judge has issued an injunction on the "Don't Ask, Don't Tell" policy in the military, but some say Congress -- and not the courts -- should decide its fate.
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JIM LEHRER: Now: what next for the don’t ask, don’t tell policy for gays in the military.

Yesterday, a federal judge in California issued an injunction barring the U.S. military worldwide from further implementing the policy. The judge said it infringed on the fundamental rights of U.S. service members. The Obama administration has 60 days to decide whether to appeal that ruling.

Defense Secretary Gates told reporters today that Congress should decide whether to repeal — Congress should decide whether to repeal don’t ask, don’t tell, not the courts.

And now, for more, we have David Chalian, the NewsHour’s political editor, and Mark Thompson, military correspondent for “TIME” magazine. David, where does it — where do matters stand now about whether the administration is, in fact, going to appeal this?

DAVID CHALIAN: DOJ, the Department of Justice, has not yet said, but all indications are that they will look to at least get the injunction put off, get a stay on the ruling that we got from California.

If, indeed, they don’t get that, they will go to the court of appeals to try to get a full appeal. But, right now, Department of Justice has not weighed in officially. That’s just the tea leaf reading, Jim.

But Robert Gibbs at the White House this morning with reporters was very clear.

JIM LEHRER: White House press secretary.

DAVID CHALIAN: The White House press secretary. He — he said the key indication that the White House takes from this court ruling is that the policy is near its end.

He reasserted, though, the White House and the president would prefer that this policy, don’t ask, don’t tell end legislatively, not through the courts. He’s just looking at the courts and the president is just looking at the courts as an indication. Basically, I think they were trying to goose Congress in saying, hey, guys, look over here in the Senate. And all you senators that didn’t vote on this last time around, look at what the courts are telling us. This is the direction that we’re moving in. Time to get on board.

JIM LEHRER: So, there could be a vote as soon as in the lame-duck — yes — session…

DAVID CHALIAN: Yes. You got it.

JIM LEHRER: … of the Congress after the midterm elections, right, to get it done officially?

DAVID CHALIAN: Last time we were here, they — we were talking about the failed vote that was attached to the defense bill.

JIM LEHRER: Yes.

DAVID CHALIAN: Harry Reid is still reworking how he’s going to bring this up in the lame-duck, but, yes, the goal of the White House is to get a vote on this in the lame-duck session, clearing away some of those procedural matters that caused it to go down a few weeks back.

JIM LEHRER: Meanwhile, Mark, what do the military — what does the Pentagon, the military do about this?

MARK THOMPSON, deputy bureau chief and Pentagon correspondent, “TIME”: Well, you remember the great military documentary “The Mouse That Roared,” Jim, with Peter Sellers?

JIM LEHRER: I do. I do. I do.

MARK THOMPSON: Well, this was the judge that roared. I mean, the White House, the Pentagon and Congress have been grappling with this for two years, and have been unable to come to a clear end.

JIM LEHRER: Actually, longer than that.

MARK THOMPSON: Right.

JIM LEHRER: It goes back years, right, sure.

MARK THOMPSON: But, since President Obama was elected, it’s become pushed to the front burner again.

And, all of a sudden, you have got a federal district court judge representing basically a quarter of California in her jurisdiction saying, around the world , don’t ask, don’t tell must end. In the military, this has got them a little bit unnerved.

They — as Secretary Gates said today and as Robert Gibbs said at the White House, this is a political matter. It should be decided by elected officials, not our appointed judiciary. There’s great concern, as Secretary Gates said today.

Listen, we have got a long process. We’re halfway down in terms of how to implement this change in this policy. And to do an abrupt turn in response of this judicial ruling is going to really be tough. And I think he was really telegraphing the fact that they will seek the stay.

JIM LEHRER: But tough doesn’t mean they won’t do it. If it somehow goes through the judicial process and becomes the law, even though it starts at a district judge…

MARK THOMPSON: Right.

JIM LEHRER: … won’t the Pentagon have to salute and say…

MARK THOMPSON: Yes, the Pentagon — oh, of course the Pentagon will have to salute. But they are betting that the Ninth Circuit — if not the Ninth Circuit, certainly Supreme Court, much more conservative, will give a lot of deference to the military.

That’s what’s so unusual about yesterday’s decision. The judges in the past basically have always said, this is military stuff; we ain’t getting involved.

JIM LEHRER: Yes. Yes.

MARK THOMPSON: And, all of a sudden, you have got this judge saying — and this judge appointed by Clinton. It was his policy. And she is basically saying, it’s over.

JIM LEHRER: Well, meanwhile, is it really over as a practical matter? Are there, in fact, members of the military being expelled from the military under this don’t ask, don’t tell policy as we speak?

MARK THOMPSON: Yes. I mean, I have talked with the gay advocates. They have been saying, since Secretary Gates in March said we want to make this policy more humane, that they really have not detected a change. Now, plainly, there’s a bit of a suspense, a bit of a pause since yesterday’s ruling. But they have issued no written guidance to commanders.

So, I think everyone’s just waiting for the next 48 hours to see if they seek and win a stay.

JIM LEHRER: Now, meanwhile, of course, the Pentagon still has the study under way, right?

MARK THOMPSON: Right.

JIM LEHRER: And is there anything new on that since we talked about it a few weeks ago?

MARK THOMPSON: No. Basically, you’re getting the sense from people you talk to that it’s not going to contain any bombshells. There are pockets of resistance.

But, as we also discussed, it’s really a generational thing. And when 80 percent of the people in uniform are younger than 30, it’s not such a big deal, as it is for senators, most of whom are not younger than 30.

JIM LEHRER: Yes. David, is it correct to say, just as a matter of fact, that don’t ask, don’t tell is on its last days, right, no matter what, how it happens?

DAVID CHALIAN: Well, I think that — right. I mean, I think it’s clear, the president set out that’s his policy preference. He got Secretary Gates and Admiral Mullen on board with that, as long as it went through that review process first.

There’s no doubt that we’re on sort of an inexorable trajectory to the ending of don’t ask, don’t tell. I think the biggest concern at the White House and certainly what Secretary Gates expressed today is that it happened in an orderly fashion, so that the military overall gets on board with it and gets comfortable with it in a fashion that is as least disruptive as possible.

But, look, I was just going to note, Jim…

JIM LEHRER: Yes.

DAVID CHALIAN: … that should the administration, as we expect, appeal this, it is yet another example of the Obama administration having to go to court to fight basically against its own policy prescriptions.

They would have to be in that awkward position of defending something they’re opposed to.

JIM LEHRER: Because the president — not only the president, but Secretary Gates and Joint Chiefs Chairman Mullen, have all said let’s — time — it’s time to get rid of it, but they wanted a process. And that’s — that process has just been preempted, has it not, by the courts?

MARK THOMPSON: Well, once again, Secretary Gates said today, let’s wait until December 1. Let’s — let’s wait until we get the — the results of the 400,000 service people we have surveyed, the 150,000 family members, so we sort of know how to deal with issues of barracks, issues of benefits.

This stuff is complicated, he said. We’re dealing with 1.4 million American men and women in uniform. It’s not something you can simply stop on a dime and reverse.

JIM LEHRER: Finally, Mark, just to pick up on something you said earlier, there may be some resistance within the military, particularly in the higher ranks and older members of the military, but, generally speaking, is it a done deal, too, do you think, in terms of just the way people are thinking in the military?

MARK THOMPSON: Yes, I think most folks realize that don’t ask, don’t tell is on life support and they will be glad when this — I mean, a general, General Campbell, was asked today in Eastern Afghanistan, hey, what do your troops think about this? And he basically said: We’re fighting a war. This is the last thing we’re going to think about.

JIM LEHRER: OK. Mark, David, thank you both very much.