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Air Force JAG Advises Officers to Comply with Injunction (Update: Emergency Stay Filed)

I thought that my post about recruiting offices and commanders in the field not following the worldwide ban on discriminating against gay and lesbian service members was pretty straightforward: if the Defense Department doesn’t want to follow the order, they have to seek relief from the courts, not just ignore the order. (Someone in the comments brought up a good point about whether the gay recruit falls within the context of the injunction, and that’s more of a legal argument, but I believe that recruits are within the jurisdiction of the military, at least with respect to allowing employment.)

Now the Judge Advocate General of the Air Force agrees: until this injunction is vacated, it must be followed.

Email from Richard C. Harding, The Judge Advocate General, U.S. Air Force:

Members of The Judge Advocate General’s Corps,

On 12 October 2010, a federal district judge of the Central District of California issued an injunction barring the enforcement or application of 10 USC 654, commonly known as the “Don’t Ask, Don’t Tell” statute. A copy is attached. At present, the United States Government is contemplating whether to appeal and to seek a stay of the injunction. In the meantime, effective 12 October, the Department of Defense will abide by its terms, as follows:

The District Court “permanently enjoins defendants United States of America and the Secretary of Defense, their agents, servants, officers, employees, and attorneys and all persons acting in participation or concert with them or under their direction or command from enforcing or applying the “Don’t Ask, Don’t Tell” Act and implementing regulations, against any person under their jurisdiction or command.”

The District Court further “orders defendants United States of America and the Secretary of Defense immediately to suspend and discontinue any investigation, or discharge, separation, or other proceeding, that may have been commenced under the “Don’t Ask, Don’t Tell” Act or pursuant to 10 USC 654 or its implementing regulations, on or prior to the date of this Judgment.”

Further guidance on this and related issues will be provided as it is made available by DoD. Inform your commanders of this injunction and its terms. Direct any questions to the Administrative Law Division, AF/JAA.

It’s pretty clear: follow the law, and right now, the law dictates compliance with the injunction. This isn’t about bigotry or gay rights so much as it is about the separation of powers. Some may have a question about Judge Virginia Phillips overstepping her boundaries with this injunction, but there’s a clear venue for that question – a court of law. If we just allow the military to pick and choose what court orders to follow we have a breakdown in the rule of law.

In a related story, attorneys for the Log Cabin Republicans, who sued the government in this case, have sent the Department of Justice a letter saying that the DoD could be cited for contempt of court by ignoring the injunction.

This will shortly be academic, as the DoJ will likely file an emergency stay as early as this afternoon. But there’s a bigger issue at stake about proper legal procedures, similar in fact to what we’ve been seeing in the foreclosure fraud scandal. Doesn’t the law have any meaning anymore?

UPDATE: I guess there’s credit here to the Justice Department to recognize they had to make a decision quickly and not compromise the lives of a lot of gay service members. The bad news is they filed the request for an emergency stay of the injunction with Judge Phillips. If she denies it, that request would move to the 9th Circuit.

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David Dayen

David Dayen