Late yesterday afternoon, Congressional leaders and the White House struck a deal that would create a process to end the military’s Don’t Ask Don’t Tell policy on gay servicemembers. Under the framework of the deal, Congress would repeal the policy but delay implementation until after the Dec. 1 release of a Pentagon study on how best to manage the new policy of open service. The President, the Secretary of Defense and the Chairman of the Joint Chiefs would then all certify that repeal of the policy would not harm military readiness, military effectiveness, unit cohesion, and recruiting and retention. Peter Orzsag at the White House confirmed the agreement with the key members of Congress working on repeal – Patrick Murphy (D-PA) in the House and Carl Levin (D-MI) and Joe Lieberman (I-CT) in the Senate – through this letter.

You can read the specific text of the repeal language here. The Servicemembers Legal Defense Network, which has been fighting to repeal this policy from the inception, sounded pleased with the agreement. SLDN devised the strategy of delayed implementation to allow for the Pentagon study, just a few days after Gates announced it, so these are essentially their terms.

“The White House announcement is a dramatic breakthrough in dismantling ‘Don’t Ask, Don’t Tell.’ The path forward crafted by the President, Department of Defense officials, and repeal leaders on Capitol Hill respects the ongoing work by the Pentagon on how to implement open service and allows for a vote this week. President Obama’s support and Secretary Gates’ buy-in should insure a winning vote, but we are not there yet. The votes still need to be worked and counted.

“If enacted this welcomed compromise will create a process for the President and the Pentagon to implement a new policy for lesbian and gay service members to serve our country openly, hopefully within a matter of a few months. This builds upon the support Defense Secretary Robert Gates and Admiral Michael Mullen, Chairman of the Joint Chiefs of Staff, expressed for open service during the February hearing in the Senate, and further underscores that this Administration is committed to open service.

More reactions from Servicemembers United, Lieberman and Murphy, and of course, the Human Rights Campaign (getting out in front of the parade).

You may remember that, on April 30, Defense Secretary Gates and Admiral Mullen wrote a letter to House Armed Services Committee chair Ike Skelton warning him not to alter the policy in any way prior to the completion of the study:

I believe in the strongest possible terms that the Department must, prior to any legislative action, be allowed the opportunity to conduct a thorough, objective, and systematic assessment of the impact of such a policy change; develop an attentive comprehensive implementation plan, and provide the President and the Congress with the results of this effort in order to ensure that this step is taken in the most informed and effective matter. […]

Therefore, I strongly oppose any legislation that seeks to change this policy prior to the completion of this vital assessment process.

So how did we get from “do nothing on this policy until the study is done” to “we’re going to repeal it now” in the space of three weeks?

Given what I’ve picked up from watching this over the last 16 months, I’d say the answer is pretty simple: the gay groups, not the established ones but the newer ones, pushed along by the LGBT blogosphere, beat the shit out of the Administration until they got what they wanted. GetEQUAL chained themselves to the White House gates about a half-dozen times. They interrupted and heckled the President at official fundraisers. They boycotted the DNC. They threatened to stay home in November. They were more aggressive on their issue than any similarly situated group.

As a result, they and their champions on the Hill – Patrick Murphy in the House, Carl Levin and (yes) Joe Lieberman in the Senate – got a grudging acceptance from the White House on basically the terms they wanted (not a moratorium, not a hold on discharges, but a repeal of the policy pending the study). We’ll see if any other issue-based group takes this as a lesson.

I know that, because this isn’t a full anti-discrimination policy, but it instead puts the authority for open service in the hands of the Pentagon, many LGBT activists have openly worried about this and future Defense Departments reversing anything done by this one. Indeed, Lt. Dan Choi, the most visible victim of this policy, tweeted last night “Do not celebrate compromises.” But that strident stance will be exactly why the President, Secretary of Defense and Chairman of the Joint Chiefs, all publicly committed to repeal, wouldn’t dare waste time after the study is completed. I just don’t think the bait and switch is going to happen here.

Further, I’m not even particularly skeptical that repeal would be un-repealed; I don’t think that 2 or 6 or more years into an utterly boring implementation of open service without incident, that anyone will have the energy to wade into this again on the other side. Feel free to call me naive and we’ll see who’s right.

Of more immediate importance is that this policy has not yet been set on a course to its end. Murphy needs to attach the repeal to the defense authorization bill on the floor of the House, and get a majority of the vote (217 at this point) on Thursday. Similarly, Levin and Lieberman have to attach the same language to the defense bill in the Senate Armed Services Committee markup, which requires 15 votes. We know the key undecideds on that: Robert Byrd, Bill Nelson, Ben Nelson (who, though he signaled opposition initially, may be back in play with the White House sign-off), Evan Bayh, Jim Webb and Scott Brown. Three of those six would be needed for passage.

So activists did yeoman work getting this deal into play, but they still must help to find the last votes to ensure passage.

David Dayen

David Dayen