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Executive Orders and 'Don't Ask, Don't Tell'

My reporting on how nondiscrimination will be achieved upon repeal of "don't ask, don't tell" is now up at New York mag's Daily Intel blog.

Last Thursday an amendment to do away with the ban on open service by gay troops was attached to the annual defense-authorization bill in both the House and Senate. However, the measure—for yet-to-be-determined reasons—doesn't include a nondiscrimination mandate. Since then, advocates have said they'll push Obama to issue an executive order explicitly banning discrimination against gay servicemembers. But, as former Clinton White House adviser Richard Socarides tells me in this piece, an executive order already exists barring anti-gay discrimination in the federal workforce. Once DADT's off the books, the EO should apply...

Related: Nondiscrimination Isn't in 'DADT' Repeal. Why?

Ex-SLDNer Speaks Out on 'DADT' Compromise

'Don't Ask, Don't Tell': When Compromise Goes Bad

'Don't Ask, Don't Tell' 'Deal': Just Say No

Nondiscrimination Isn't in 'DADT' Repeal. Why?

I try never to rain on people's parades. Really, I do. But now that the compromised "don't ask, don't tell" repeal is moving forward in Congress after historic votes last night, I don't want momentum to obscure how we passed legislation to undo discrimination against gay servicemembers without legal nondiscrimination protection for them. As I've suggested all week, this lack renders the repeal process null in my eyes. Yes, there's been much speculation President Obama will issue an executive order barring discrimination on the basis of sexual orientation when repeal is finally "certified" next year (we hope), but a White House directive doesn't have the symbolic power of law. It also can be discontinued by Obama's successor. (This is what happened in Virginia earlier this year when new governor Bob McDonnell stopped nondiscrimination protection for gay state employees after eight years of such under his Democratic predecessors.)

But the evacuation of a nondiscrimination mandate from the DADT repeal process raises two greater questions for me. One is political: Why was the provision dropped? The second is conceptual: What does it mean that our advocates went along with it?

As my friend and former Advocate colleague Kerry Eleveld describes in the best analysis of the compromise so far, LGBT advocates were greeted with news of the mandate's removal when they arrived at the White House on Monday to be "briefed" on the new legislation. Though it's still unclear who decided to drop the mandate, Eleveld's description suggests that it happened without input from advocates. If that's the case, the DADT compromise shows once again how limited the LGBT community's power is—that is, legislation to ameliorate injustice on our behalf, spurred by our activism, was finalized without our say. It bespeaks the major structural change that still needs to happen in Washington—we need more LGBT people in the room when decisions like this go down. (And don't point to Barney Frank, please—he's sold us out before, like the time he tried to pass the Employment Non-Discrimination Act without protections for trans people.)

Nevertheless, our advocates could've walked away from the deal, which lacks the fundamental tenet of the LGBT civil rights movement: equality. (After all, that's what nondiscrimination is.) Would Congressional leaders still have moved forward without the de facto support of the LGBT community? Who knows, but it would've been interesting to see—for once—what happens when our advocates stop kowtowing to Democrats. At the very least, our advocates could've negotiated further—but again, we don't know what they did when they learned that nondiscrimination was gone.

All I know is that the press releases came fast and furious Monday night once President Obama—nay, budget director Peter Orszag—offered his blessing of the compromise. The inexorability of legislative process demands you go along with the course once it's been set or risk suffering bad precedent. I know this. But what about the bad precedent that results from endorsing a plan that betrays the very essence of what we're fighting for?

Equality—nondiscrimination—should be non-negotiable. Yes, we had political victories last night, but at what cost? The means matter as much as the end, and I fear our movement for justice has now been tainted. I can't help but wonder what might've been if our advocates pushed on for a vote on Rep. Murphy's original bill and the creation of a companion bill in the Senate—or if we simply waited for the conclusion of the Pentagon study in December. That's what was signed off on last night, don't forget. People will call me naive, I know, but the alternatives are worth considering—as are our mistakes.

Perhaps a reporter will figure out what happened behind those closed doors on Monday, or perhaps it'll be left to a historian. Either way, accountability requires that we know.

Related: Ex SLDN-er Speaks Out on 'DADT' Compromise

'Don't Ask, Don't Tell': When Compromise Goes Bad

The 'Don't Ask, Don't Tell' 'Deal': Just Say No

Ex SLDN-er Speaks Out on 'DADT' Compromise

When I first heard the crushing news Monday night that our leaders had settled on a compromise that guts repeal of "don't ask, don't tell" of any force, I thought of Steve Ralls, the former communications director of Servicemembers Legal Defense Network. As a former news editor of The Advocate, I'd worked with Steve on many stories (including one that featured the first on-the-record comments from an active-duty gay servicemember). I figured he'd be similarly upset about the disappointing turn of events—and he is.

Steve worked at SLDN from 1999-2008. At a moment when so many seem to be forgetting the history of "don't ask, don't tell" or overlooking crucial details of the compromise, he's not. In his own words:

"I worry that something similar to 1993 is about to happen all over again, and too few people are paying attention to the details of this plan. In my view, it is problematic on several levels.

"Unfortunately, we are not getting a solution that will put the issue to rest. Instead, we're getting one half of an ideal solution, which will leave the debate continuing on for, I fear, a long time to come. And, the worst part of it all, is that service members will continue to be stuck in the middle. 

"This 'compromise' is far less than what our men and women in uniform deserve. I honestly (and literally) got a knot in my stomach when I read the proposed amendment. Repeal is drastically undermined without a second, critical piece: A policy of non-discrimination mandated by Congress, signed by the President and enforced by the Pentagon. That second action must be the centerpiece of any acceptable proposal, and I believe it could have been accomplished while still satisfying the desire of the Pentagon to wait for its working group report before implementation begins.

"The plan we now have, instead, simply returns authority to the Department of Defense, without specific instructions for open service. That's where we were pre-'93, and it's far behind what we owe the LGBT troops who have already been held to a separate standard than their straight colleagues for far too long. They have more than earned an actual policy that welcomes their service and explicitly prohibits any discrimination against them. I worry when we propose settling for anything less."

Thanks for sharing, Steve. You're the best.

Related: 'Don't Ask, Don't Tell': When Compromise Goes Bad

The 'Don't Ask, Don't Tell' 'Deal': Just Say No

'Don't Ask, Don't Tell': When Compromise Goes Bad

My issue with Congressional action on the so-called "don't ask, don't tell" compromise is this: There's no there there. The legislation being considered (as Chris Geidner of Metro Weekly describes here) makes repeal, such as it is, entirely discretionary. It says the law barring open service by gay men and lesbians will be repealed if various undefined conditions are met. That's it. There's not a deadline for when these vague but contested criteria—military readiness, unit cohesion, etc.—must be resolved. Only three men in a room (as DailyKos's Clarknt67 describes here) get to conclude this indefinite process. Worst of all, the only standard that matters vis-a-vis a policy of discrimination—nondiscrimination—isn't mandated by this putative repeal measure. As former President Clinton adviser Richard Socarides, who knows from history, has called the legislation, it's a "conditional future repeal"—which isn't a repeal at all.

Rep. Patrick Murphy (D-PA), whose previous version of repeal legislation was actually substantive, tells Geidner above that he's "very confident" repeal will happen swiftly after the end of the Pentagon's study on the subject this December. But what will that repeal consist of? As I wrote on Monday, the language of the current legislation endorses the exact military concepts used to disallow open service by gays—concepts that were proved wrong before "don't ask, don't tell" was enacted. Essentially, if repeal happens, it'll be on the military's terms—not the clear terms of equality, fairness, and inclusivity. The military could very well decide, for instance, that because of (groundless) unit cohesion concerns, gay troops would need to be segregated. The military could decide, for instance, that all their concerns will be handled internally, without a transparent system to implement open service. The military could decide, for instance, that there will be no oversight for the above, or any recourse for gay servicemembers to challenge their treatment. Under the proposed legislation, these scenarios and more could be allowed and "repeal" will still be certified.

Despite these dangers, we're being asked by advocates and others to accept this compromise because supposedly the present is our best shot at Congressional action, or because it's an Important First Step towards binding repeal. But just as no one's asking the aforementioned questions, no one's asking these: If this toothless legislation becomes law, how do we enforce it? If President Obama can't or won't make the military come around now on substance, why do we expect him to convince the military at some later date? And if this "repeal" passes, haven't our advocates given away their leverage? After all, "don't ask, don't tell" was repealed. What else is there to be done?

Meanwhile, gay servicemembers are stuck in limbo, while attention to their plight shrinks in subsequent months because (again) "don't ask, don't tell" was repealed. That seems like a worse state than the status quo—which is exactly what happened when another vaunted compromise was made law in 1993. (Don't believe me? Read the annual reports from Servicemembers Legal Defense Network. The military exploited "Congressional action" then and made a monster out of "don't ask, don't tell.")

Beckett couldn't have written a better shell game.

The 'Don't Ask, Don't Tell' 'Deal': Just Say No

"The proposed amendment will...enable the Department of Defense to assess the results of the review, and ensure that the implementation of the repeal is consistent with standards of military readiness, effectiveness, unit cohesion, recruiting and retention." These words from White House budget director Peter Orszag (posted by Politico, among others) sealed a dubious deal on repeal of "don't ask, don't tell" reached today by the Obama administration, Senators Lieberman and Levin, Rep. Murphy, and Servicemembers United, Human Rights Campaign, and Servicemembers Legal Defense Network.

It's quite a turn of events to see these aforementioned advocates endorsing the very talking points that military brass and other opponents of repeal have consistently used since day one to prevent gay and lesbian servicemembers from serving openly. Military readiness, effectiveness, unit cohesion, recruiting and retention—all canards that have been debunked for years, since before the original "don't ask, don't tell" "compromise" in fact. (Look what compromising the first time around did!) As my friend and "don't ask, don't tell" expert Nathaniel Frank likes to say (as he does in this March Center for American Progress report), the policy isn't "based on sound research because no research has ever shown that openly gay service hurts the military." The military's own studies in the 1980s turned up no risks; neither did a 1993 RAND study that was totally ignored at the time.

Military leaders have never been honest brokers on this issue, despite the fact that a majority of servicemembers have no problem with gays serving openly (as shown by numerous polls). So why are our leaders, elected and de facto—who are supposed to be honest brokers—ceding all control of repeal to the military? The history of activism against the ban has been to force the military to get in line with equality. Instead, in a (rightful) rush to get repeal done as soon as possible, we're giving the military giant loopholes with no mechanism for enforcement, or a deadline for such.

Orszag's letter doesn't even call for open service by gays, or for an end to discrimination against them. Instead, it allows "our military and their families the full opportunity to inform and shape the implementation process through a thorough understanding of their concerns, insights, and suggestions." Families? That sounds awfully close to "family values," a bogus phrase that ought have nothing to do with repeal of "don't ask, don't tell."

Then again, this whole "deal" is bogus. I hope it fails. Our servicemembers—all of them—deserve better.

The 'Don't Ask, Don't Tell' 'Die-In'

Yesterday Lt. Dan Choi and Capt. Jim Pietrangelo chained themselves to the White House fence again, joined by four other servicemembers. It was another bold, poignant action organized by Get Equal, and at least some of the mainstream press paid attention this time (such as CBS News, which produced the above video). It was exciting to see the on-the-spot updates trickle through my Twitter feed, and I opined that "ACT UP would be proud of the WH actions, and ACT UP got things done."

ACT UP, of course, is the foremost example of successful direct action in America in the last 30 or 40 years. (The anti-globalization demonstrations in Seattle in 1999 and later in DC certainly sent a strong message of resistance but nevertheless failed to change the status quo.) Established in 1987, the AIDS Coalition to Unleash Power sought to reverse years of government neglect of HIV/AIDS and to reduce the cost and clinical barriers to life-saving drugs like AZT. The group's website—yes, they're still around, and they meet weekly at New York's LGBT Community Center—has a detailed capsule history of ACT UP actions and impacts, but from the start, when they literally waylaid Wall Street to protest the profiteering of pharmaceutical companies, they were an unyielding force. By the time they began employing political funerals in 1992—that year "the actual ashes of people we love" were dropped on the White House lawn—ACT UP had enormously changed domestic HIV/AIDS policy.

It's this legacy that Get Equal has now picked up. It's not their only inspiration—the civil-rights movement and Gandhi are two others—but when I see Dan Choi, in uniform, chained to the White House fence, I see a die-in. It's not a die-in, of course—though some gay servicemembers have died in part because of "don't ask, don't tell" (like Barry Winchell), Choi isn't simulating death. Instead, he and his compatriots are simulating imprisonment: the literal, conceptual, and psychological incarceration caused by the military's ban on open service. (I heard the sight of Choi and Pietrangelo the last time made some gay vets, like Eric Alva, the first servicemember injured in the Iraq war, physically sick. But isn't that the point? Reduced to its essence in the cold light of day, "don't ask, don't tell" is nauseating.)

To be sure, ACT UP can't be separated from HIV/AIDS—it's the only issue the group cared about, and, in the late '80s and early '90s, it was the only issue that mattered. But because of ACT UP's powerful activism, the LGBT community became a political constituency that policymakers ignored at their peril. This is the message of the Get Equal advocates, some of whom disrupted a House committee hearing today demanding that ENDA be marked up. I suggest they take another tactic from the ACT UP playbook and go after defense contractors like Boeing or Lockheed Martin, both of which protect LGBT employees from discrimination (and offer partner benefits to boot). If their stock prices dip thanks to a direct action or two, the Pentagon might need to conclude their review of "don't ask, don't tell" quite soon.