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No Non-Discrimination Mandate in the DADT “Repeal” Sham (UPDATE)

Most problematical is the third piece of the DADT "repeal" sham compromise — the first two are that the President, the Secretary of Defense and the Chairman of the Joint Chiefs must certify the military is ready for open service and the second is allowing the military to complete its study. The third concession may cause the most problems.

But by the time repeal advocates were invited to the White House on Monday morning to be briefed on a new compromise, a third concession had been added. There would be no nondiscrimination mandate. In other words, even after the law is repealed, it will not be replaced at any point with a policy that explicitly states gays and lesbians are allowed to serve openly in the military.

It’s not clear exactly when or why that provision was added, but now that all three concessions are included in the compromise, in my eyes, it’s the most problematic. Some activists are understandably concerned that the first two concessions give the Pentagon virtually unfettered control over timing that could lead to a lot of foot-dragging. But at the very least, a nondiscrimination mandate would have guaranteed the outcome. With the current proposal, we not only have no idea when we’ll arrive, we don’t even know what the destination is.

Like every single Obama compromise pursued by this Congress, it’s also unclear that this one secured any new votes:

The bad news is, the votes may have already been on tap. And the really tragic news is, it’s increasingly unclear that the compromise has won over any new votes. Apparently, the statement from Gates’s spokesperson — not even Gates himself — was so weak that fence-sitters like Brown and Webb weren’t persuaded to throw their weight behind the effort.

Was this simply another example of the Obama White House trying to board a train on its way out of the station without them?

The White House and Gates seemingly didn’t want a vote this year. Activists wouldn’t let up. Murphy, Levin, and Lieberman put in a heroic effort to salvage repeal. And in my estimation, when Levin was one vote away in the Senate committee, White House officials realized the repeal train was leaving without them and not hopping aboard was a no-win situation. If it passed, they would get no credit; if it failed by one vote, activists would castigate them for withholding support.

The Advocate says no premature celebration is in order:

No matter what happens during the votes Thursday and Friday, the White House will deserve credit only after the law is repealed and replaced with a nondiscrimination policy. And if Congress votes to cede authority over the policy to the administration, President Obama will be uniquely empowered to issue an executive order that guarantees all Americans the opportunity to serve their country with integrity and honor.

UPDATE: House member Patrick Murphy (D-PA) lead author of both the original legislation and this compromise, has a specific response regarding the absence of a non-discrimination clause, which his original legislation did contain:

I’m fully confident in the public testimony of both Secretary of Defense Gates of Chairman Mike Mullen and our current Commander in Chief, Barack Obama, that they have been very clear that they want to have a nondiscriminatory policy in place. Having a nondiscriminatory policy in place was impossible because U.S. law for 17 years was that we’ll continue discrimination that we currently do as under Don’t Ask, Don’t Tell. The Secretary of Defense and the Chairman could put clearly a policy in place that would not discriminate against men and women because of their sexual orientation. And I have full confidence that they will.”

So there’s that.

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Teddy Partridge

Teddy Partridge