Judge Likely To Deny DOJ’s Request To Stay DADT Injuction, Further Underminig Govt’s Argument

Last night, federal district Judge Virginia Phillips indicated that she’s unlikely to grant the federal government’s request to stay her injunction barring the Pentagon from enforcing Don’t Ask, Don’t Tell. As Metro Weekly’s Chris Geidner explained, “This is the worst of all worlds for the Department of Justice attorneys arguing for the stay, because Phillips has more or less said that she doesn’t plan on giving them the stay while at the same time not issuing a ruling that is capable of being appealed to the U.S. Court of Appeals for the Ninth Circuit.” “Until Phillips issues an official denial of the request for a stay, in other words, DOJ just has to sit and wait.” If the Ninth Circuit denies the stay request, the government is prepared to petition the Supreme Court.

But in court on Monday, Phillips appeared less than impressed with the government’s arguments:

“The request is untimely,” she said, noting that the government had several weeks to present evidence about the effects that a worldwide permanent injunction could have on the military. “Neither at trial, when the government declined to put on any evidence, nor during the time it was allowed in a briefing schedule, did the government put on substantive evidence as to the form of the injunction,” she said.

She criticized evidence the government had advanced. “The first exhibit is a Rolling Stone article,” she said. “I hardly need to say more than that.”

She also found fault with the government’s introduction of declaration by Clifford Stanley, undersecretary of defense for personnel and readiness, who said the injunction would create a burden for the military. She said the declaration was “too conclusory to be of much assistance in the defense to meet the legal burden in obtaining a stay.”

The big problem for DOJ is that the longer the government has to wait for a court to stay Phillips’ injunction, the weaker their argument becomes about the importance of DADT in maintaining military readiness and other national priorities. Defense Robert Gates has warned that ending the ban through the court would have “enormous consequences for our troops,” but the Pentagon has yet to identify any negative impact from its temporary suspension of the ban. The Palm Center has launched an entire website to track any potential consequences and has submitted a Freedom of Information Act request for all documentation related to the suspension of DADT.

For more on the uncertainly surrounding Don’t Ask, Don’t Tell, read yesterday’s Progress Report.