To be sure, there is still a very small chance that the lame duck Senate will pass the National Defense Authorization Act before the end of the year, conference it with the House, and then send it to President Obama for his signature. But after the Senate successfully filibustered the measure last week and the three new Senators who could be sworn in after Nov. 2 have not exactly committed to voting for the measure, the chances of ending the ban legislatively are infinitesimal. Alternatively, Obama could sign an executive order or fail to appeal the recent federal district court decision that found the policy unconstitutional — both of which he is not inclined to do.

Yesterday, speaking at a Victory Fund event, House Speaker Nancy Pelosi (D-CA) pressured Obama to end the policy before the end of the year, hinting that he should sign an executive order ending discharges. From Washington Blade’s Chris Johnson:

Asked by a reporter whether she’s spoken with Senate Majority Leader Harry Reid (D-Nev.) about the Senate taking another shot at “Don’t Ask, Don’t Tell,” Pelosi replied, “That will be gone by executive — that will happen with or without Congress.” “I don’t think it has to depend on whether it passes the Senate,” she continued. “The process will work its way through and the president will make his pronouncement.” [...]

Asked whether she would call on Obama to issue an order to end “Don’t Ask, Don’t Tell,” Pelosi replied, “That is the unfolding that we will see.”

“I’m very pleased with the course that the president’s on, but I think that they we shouldn’t be discharging people until that happens — so that, we have a little separation of — in terms of policy on that,” Pelosi said.

Since the filibuster, Democrats have been exploring alternative ways the administration can act to gradually end the policy before the end of the year, with 69 House Democrats urging the Department of Justice not to appeal the court ruling. Yesterday, the Advocate’s Karry Eleveld reported that a “similar Senate letter originating from senators Kirsten Gillibrand and Mark Udall now claims 11 members and counting, according to those familiar with the effort.”

In a Rolling Stone interview published on Tuesday, however, Obama seemed to close the door to alternative routes to ending the policy, insisting that he would pursue an “orderly” repeal. Whether or not he’ll be more willing to act after the Pentagon’s Working Group releases his study in December, remains to be seen.

The Advocate’s Kerry Eleveld reports on the difficulties Democrats will face in passing the National Defense Authorization Act (and its amendment to begin the process of repealing Don’t Ask, Don’t Tell) during the lame duck session, noting that the Democratic leadership will face a busy calender, a potentially devastating political set back and a re-energized Republican party:

Reality is settling in and many advocates for repeal of “don’t ask, don’t tell” have begun to acknowledge that passing the National Defense Authorization Act in the lame-duck session after the midterm elections is unlikely at best and could ultimately rest in the hands of Republicans.

A nearly insurmountable series of negatives seem to be stacking up: The White House is not engaged, time is running terribly short, Republicans are winning the political battle on the legislation, the midterms only stand to weaken Senate Democrats, and many fear the release of the Pentagon’s study of repeal in early December could deal a final blow to the effort.

“When you actually look at how much time Congress has to be here in lame duck, and the appetite to get difficult bills done, it will be very difficult to move the defense authorization bill,” said Winnie Stachelberg, who is vice president of external affairs at the Center for American Progress and has worked on the repeal effort.

Stachelberg tempered her comments with glimmers of hope, pointing out recent remarks from White House deputy chief of staff Jim Messina, who last week spoke to a group of students at The University of Montana about DADT and said, “We’re going to get that done this year.”

An additional challenge facing Democrats is the uncertainty over the three new Senators from Illinois, Delaware and West Virginia who are expected to take their seats — and their first votes — within days of the Nov. 2 election. At least one of those Democratic candidates, West Virginia Governor Joe Manchin is now on record as opposing the existing DADT compromise. Here is the email I received from his campaign:

The Governor doesn’t believe the rules should be changed until the battlefield commanders can certify it doesn’t hurt unit cohesion.

All this means that the Senate is unlikely to take up the measure before the Pentagon releases its study, further delaying and jeopardizing repeal efforts.

Earlier this afternoon, Gen. Carter Ham — the co-chair of the Pentagon’s Working Group studying Don’t Ask, Don’t Tell — tweeted that just 41,000 of 150,000 military spouses (or 27.3%) responded to the military’s controversial survey about the policy. Incidentally, the Pentagon’s initial survey of troops garnered a similar response rate of 27.5%. Ham’s tweet:

Prior to sending out the survey, Pentagon sources had predicted that DADT will rank low on the list of families’ priorities and said that past focus groups have shown that family members have other, more pressing concerns. Indeed, the relatively low response rate could suggest that most simply don’t care about the policy.

The survey was sent out to military families in late August and immediately came under attack from LGBT organizations, who condemned it as “insulting and derogatory,” despite the Defense Department’s efforts to reach out to the spouses of gay and lesbian troops. The Working Group is scheduled to release its study in early December and so far, the results of the questionnaire are still unknown. Last week, during his confirmation hearings to become the Marine Corps’ 35th Commandant, Gen. James Amos did say that most Marines still supported the ban.

In a Rolling Stone interview published this morning, President Barack Obama seemed to signal that he would continue to try and repeal Don’t Ask, Don’t Tell through the legislative process and accommodate the work of the Pentagon’s review, despite the successful filibuster of the 2011 National Defense Authorization Act in the Senate and pressure from progressive activists and 69 House Democrats to try and end the ban by not appealing a recent federal court decision which found the policy unconstitutional.

The DADT remark came as Obama was stressing his administration’s accomplishments in its first two years in office and showing frustration over the lack of credit he has received. “I’ve been here two years, guys. And one of the things that I just try to remember is that if we have accomplished 70 percent of what we committed to in the campaign, historic legislation, and we’ve got 30 percent of it undone — well, that’s what the next two years is for, or maybe the next six,” Obama said. He did not directly say how he would meet his administration’s promise to end DADT before the end of the year, but signaled that it should be done in an “orderly” way:

OBAMA: Understandably, everybody has a great sense of urgency about these issues. But one of the things that I constantly want to counsel my friends is to keep the long view in mind. On social issues, something like “don’t ask, don’t tell.” Here, I’ve got the Secretary of Defense and the Joint Chiefs of Staff both committed to changing the policy. That’s a big deal.

ROLLING STONE: You get credit for that.

OBAMA: Now, I am also the commander in chief of an armed forces that is in the midst of one war and wrapping up another one. So I don’t think it’s too much to ask, to say “Let’s do this in an orderly way” — to ensure, by the way, that gays and lesbians who are serving honorably in our armed forces aren’t subject to harassment and bullying and a whole bunch of other stuff once we implement the policy. I use that as an example because on each of these areas, even those where we did not get some grand legislative victory, we have made progress. We have moved in the right direction.

The administration has thus far been reluctant to upset the repeal compromise the Democrats struck with Secretary of Defense Robert Gates, and has repeatedly suggested that it would stick to the legislative route, eschewing another option in which Obama could use his ‘stop loss’ authority to end the discharges.

Before the vote failed in the Senate, Vice President Joe Biden had described the legislative amendment in the National Defense Authorization Act as “the compromise we basically had to make to get the votes to finally repeal it.” ” I would prefer it not be orderly. I prefer it just end, boom, done. But that’s why that hasn’t happened.”

For more on what the administration can do to repeal Don’t Ask, Don’t Tell before the end of the year, check out yesterday’s Progress Report.

UK’s People Management is reporting that the British army is advising the Pentagon’s Working Group on how best to eliminate Don’t Ask, Don’t Tell — part of that group’s ongoing effort to review the experiences of open service in foreign militaries:

Colonel Mark Abraham told PM that fears surrounding the removal of the exclusion policy had been unfounded, and the overnight lifting of the ban in January 2000 had resulted in “no notable change at all”. [...]

“We knew a lot of gay and lesbian people were serving quite successfully, and it was clear that sexual orientation wasn’t an indication of how good a soldier or officer you could be.”

He continued: “The reality was that those serving in the army were the same people the day after we lifted the ban, so there was no notable change at all. Everybody carried on with their duties and had the same working relationships as they previously had while the ban was in place.”

The UK dropped its restrictions after it lost a legal challenge in the European Court of Human Rights in 1999, and the new policy became effective in January 2000. “Thirty months after the United Kingdom changed its policy to permit open service, the Ministry of Defense concluded in a tri-service review of its army, air force, and navy that the change had been accomplished smoothly. The Royal Air Force reported that ‘the overwhelming view of RAF COs [commanding officers] is that the change in policy was overdue and represented recognition of the diverse culture in which we all live. All COs agreed that there had been no tangible impact on operational effectiveness, team cohesion, or Service life generally.’

For a sample of what the Brits may be recommending to the study group, click over to this report by CAP’s Lawrence Korb on how our allies implemented their open policies:

- CONDUCT: The British created a new Armed Forces Code of Social Conduct that applied equally to heterosexuals and homosexuals. The Code provides equal protection for all service members by focusing on an individual’s behavior rather than the individual’s specific characteristics. It steers clear of the potentially rancorous process of establishing explicit, separate regulations on conduct for gay and straight soldiers.

- DISCIPLINE: The United Kingdom provides opportunities for service members to seek redress if they believe that they have been treated unfairly by other members of the armed forces. These protections do not specify or depend on the sexual orientation of the involved parties.

- CO-HABITATION: Concerns about co-habitation turned out to be much ado about nothing and abruptly disappeared once openly gay men and women were integrated into the military and began living and sleeping in the same quarters as straight service members.

- REINSTATEMENT: After the United Kingdom removed its ban on open service, the armed forces offered former service members who had been discharged under the policy the opportunity to rejoin the force. Only a small minority re-joined.

Read Lawrence Korb’s entire report on what the Study Group can learn from other countries here. (H/T: LezGetReal)

Ron Johnson, the Republican candidate challenging Sen. Russ Fiengold (D-WI) this November said that he supports ending Don’t Ask, Don’t Tell but would want to see the results of the Pentagon’s study group before voting to end the ban against openly gay and lesbian servicemembers:

“I would like to see what the input of the military is before I would vote on something like that and I’m happy to take their information, either way,” Johnson said.

He said if the military’s conclusion is to get rid of the ban and the findings are convincing, he would vote for the repeal.

If elected, Johnson would then be one of two other Republicans — Sens. Olympia Snowe (R-ME) and Susan Collins (R-ME) — to publicly voice support for ending the ban. Sens. Scott Brown (R-MA), Dick Lugar (R-IN) and George Voinovich (R-OH) are more likely than other Republicans to vote against the policy. Other than Collins, however, all of the other Republican Senators have (like Johnson) hinged their support on a positive study from the Pentagon’s Working Group.

Feingold, however, supports the existing amendment that already accommodates the Pentagon’s review and voted to end its filibuster in the Senate on Tuesday.

Air Force Major Margaret Witt — a lesbian discharged under Don’t Ask, Don’ Tell who recently won a court battle to reinstate herself in the service — told MSNBC’s Contessa Brewer that she was “ready” to return back to her job as a nurse in the Air Force and predicted that her unit would welcome her with open arms:

WITT: I’ve always had a career in the private sector as well, but no, I never once thought about giving up this fight. There has been over 13,000 people that have been discharged because of this and if I have the opportunity — which thankfully I do, there is no way that I would give up the fight. [...]

The people in my unit has been behind me 100 percent. You know, I think the most recent statistics are something like 65,000 [gay or lesbian] people are serving every day. All we want to do is our job, so all I want to do is my job. And I think they’ll welcome me back for that.

Watch it:

Sarah Dunne of the ACLU — the organization which helped mount Witt’s court battle — stressed that Witt’s case established an important precedent in the ninth circuit, requiring the federal government to prove the discharged soldier undermined military effectiveness. “If [servicemembers discharged in the 9th circuit choose], they’ll have an opportunity to go to court and show that their sexual orientation had no effect, no negative consequence on their unit or the military’s ability to do their mission or do their job.” “We hope actually that other servicemembers around the country who are facing discharge under Don’t Ask, Don’t tell will seek to challenge their dismissal,” she added.

Earlier this afternoon, in another blow to Don’t Ask, Don’t Tell, a federal district judge in Washington ruled that former Air Force Major Margaret Witt — who was discharged under the ban — should be reinstated to her job. Judge Ronald B. Leighton found that the policy “violates Major Witt’s substantive due process rights under the Fifth Amendment to the United States Constitution.” “She should be restored to her position as a Flight Nurse with the 446th AES as soon as is practicable,” he concluded.

Leighton dismissed Witt’s case in 2006, only to be overruled by the 9th Circuit Court of Appeals in 2008. That decision established a new precedent which prevented the military from discharging servicemembers under the policy in that circuit unless it could prove that it furthered military goals. The 9th Circuit sent the case back to Leighton and today he ruled that the government did not meet that burden of proof:

The evidence produced at trial overwhelmingly supports the conclusion that the suspension and discharge of Margaret Witt did not significantly further the important government interest in advancing unit morale and cohesion. To the contrary, the actions taken against Major Witt had the opposite effect….. There is nothing in the record before this Court suggesting that the sexual orientation (acknowledged or suspected) has negatively impacted the performance, dedication or enthusiasm of the 446th AES. There is no evidence that wounded troops care about the sexual orientation of the flight nurse or medical technician tending to their wounds. [...]

These surveys and polls are some evidence that there may be persons in the 44th AES who would prefer that gays and lesbians not serve openly within their unit but such preferences are not outcome determinative here. The men and women of the United States military have over the years demonstrated the ability to accept diverse peoples into their ranks and to treat them with the respect necessary to accomplish the mission, whatever that mission might be. [...]

Again, these polls are some evidence that some folks would prefer to not serve with admitted homosexuals. That such views may lead to a drop in recruitment or retention is a possibility, just as it was a possibility during the integration of blacks, other minorities and women into the armed forces.

The Seattle Times notes that this is the “first time since Congress approved the policy in 1993 that a federal judge has ordered the military to allow an openly gay service member to serve in the armed forces.”

“You have been and continue to be a central figure in a long-term, highly-charged civil rights movement,’ said Leighton, speaking directly to Witt. “That role places extraordinary stresses on you, I know. Today, you have won a victory in that struggle, the depth and duration of which will be determined by other judicial officers and hopefully soon, the political branches of government.”

Read the full ruling HERE.

Just a day after the Justice Department asked a federal district court to limit an injunction against enforcing Don’t Ask, Don’t tell, 69 progressive Democrats in the House have written a letter asking DOJ not to appeal the judge’s decision in the case:

Mr. President, in this critical time when military readiness is paramount we must recognize the importance of every linguist, flight nurse and infantryman. As you announced our official end of combat operations in Iraq we must prepare for what is to come. To stay above the rest, to maintain the most formidable military force in the world, we must innovate, change and grow. As we update our weaponry and strategy, so too must we open our policy to encourage as much cohesiveness and camaraderie as possible. In the military were lives rely on trust and determination, DADT represents neither.

We consider this matter a top priority to our service members, the American people and the security of the United States. We acknowledge and appreciate your support and hope that together we can end this dishonorable policy once and for all. We hope that you, as the Commander-in-Chief of the Armed Services, will take this opportunity to restore integrity to our military and decline to appeal Judge Phillip’s ruling.

Indeed, following the successful filibuster of the defense appropriations bill, a growing number of progressives have begun pressuring the White House not to appeal the judge’s decision, seeing it as the most likely scenario under which the White House can live up to its pledge and end the policy before the end of the year.

The other two options are becoming increasingly improbable. The President could use his “stop loss” authority to issue an order “prohibiting the Secretary of Defense—and the Secretary of Homeland Security with respect to the Coast Guard when it is not operating under the Navy—from establishing, implementing, or applying any personnel or administrative policies, or taking a personnel or administrative action, in whole or part on the basis of sexual orientation. The order should further prohibit sexual orientation discrimination within the armed forces and among people seeking entry into the Armed Forces” and include a ban on “further dismissals on the basis of DADT.” Alternatively, the Senate leadership could attempt to pass the defense authorization bill in the aftermath of the midterm elections.

But it’s likely that the looming Democratic defeat in November would only strengthen supporters of DADT, making it far more difficult for the Senate to pass the defense measure with the gradual repeal amendment. Republicans have already unleashed a campaign to prevent the so-called lame duck Congress from taking up important progressive legislation and Democrats have shown no indication that they’re capable of standing up to the GOP bullying. A further complicating factor is the Working Group, which is scheduled to release its findings on December 1st and will likely provide supporters of repeal with further ammunition with which to delay any legislative action.

Similarly, the President, who has thus far been reluctant to upset the repeal compromise the Democrats struck with Secretary of Defense Robert Gates, would have to issue his order after voters had presumably “rejected” the so-called Obama agenda. If anything his instincts will be telling him to move to the right, rather than the left.

The Department of Justice DOJ has an obligation to defend existing law, but as the Palm Center laid out on Wednesday, “it would be inaccurate to characterize this common practice as a mandatory requirement that DOJ must always defend federal laws in all cases, without exception.” As the 69 Democrats write, this case is that exception because the policy is unjust and declining to appeal its unconstitutionality is one of a shrinking list of options the administration has if it’s to live up to its obligations.

Last week, following a federal district court ruling which found Don’t Ask, Don’t Tell is unconstitutional, the Log Cabin Republicans — the plaintiffs in that case — filed an injunction to prevent the Defense Department from enforcing the policy and end the military’s ban against openly gay and lesbian servicemembers. The group asked Judge Phillips to prohibit the Pentagon “from enforcing or applying” DADT “including any implementing regulations, against any person under their jurisdiction or command.” The group also asked that the Judge suspend all ongoing DADT-related investigations. Moments ago, the Justice Department filed an objection to the proposed injunction, insisting that the judge’s decision be limited to the plaintiffs in the suit. The government argued that a wide injunction would “foreclose the US from litigating the constitutionality” of DADT in other cases and frustrate the ongoing Pentagon review of the policy:

A military-wide injunction would, moreover, prohibit the consideration of similar challenges in other courts and would freeze the development of important questions of law in violation of the Supreme Court’s clear direction that, in cases in which the United States is a defendant, the United States must be allowed to continue to advance legal arguments even after they have been rejected by a particular circuit. [...]

Witt affords the government the opportunity to develop the record to show that individual discharges are necessary upon a showing that the discharge of a particular servicemember “significantly furthers the government’s interest and whether less intrusive means would achieve substantially the government’s interest.” By enjoining all discharges, plaintiff’s proposed injunction would effectively preclude any such showing and prevent the as-applied adjudications the Ninth Circuit contemplated in Witt. Finally, binding Ninth Circuit precedent limits the authority of the district court to issue injunctive relief that would restrict the government’s enforcement of DADT throughout the entire country, as such an order would fail to afford due respect to the rulings of a sister circuit that has rejected the claims that would form the basis for the district court’s order of injunctive relief. [...]

“Entering an injunction with immediate effect would frustrate the ability of the Department of Defense to develop necessary policies, regulations, and training and guidance to accommodate a change in the DADT law and policy. An injunction with immediate effect will put DoD in the position where it must implement ad hoc potentially inadequate policies at a time when the military is in the midst of active combat operations.”

Following the Senate’s failure to begin debating the resolution, several Democratic lawmakers and repeal advocates saw the case as the fastest way to end DADT, and publicly urged DOJ not to appeal Judge Phillip’s decision. But this is merely the injunction. Once the judge enters her judgment, the crucial test will be whether the government decides to appeal her ruling. It’s also interesting that the government doesn’t defend the policy, and just questions the scope of LCR’s demands.

Read the DOJ’s entire response HERE.

Yesterday, the Florida Court of Appeals for the Third District unanimously upheld a lower court’s finding that there is “no rational basis” for Florida’s statutory ban on gay and lesbian people adopting children in the state. “Given a total ban on adoption by homosexual persons, one might expect that this reflected a legislative judgment that homosexual persons are, as a group, unfit to be parents,” the opinion states. “No one in this case has made, or even hinted at, any such argument.”

Gov. Charlie Crist — whose recent conversion on gay rights led him to at one point suggest that the case should be dropped entirely has announced that the state will stop enforcing the 33-year-old ban and will “confer with the adoptive father at the center of the case before deciding whether to appeal. He said, however, that he believes the state Supreme Court wouldn’t overturn the court rulings.” Towelroad has this video of Crist’s remarks:

Republican gubernatorial candidate Rick Scott, meanwhile, said he was opposed to what he termed “single sex adoption.” “Children should be raised in a home with a married man and a woman,” Scott said.

Florida, of course, is the only state to explicitly prohibit gays and lesbians from adopting children. The state enacted the ban in 1977 — on the heels of Anita Bryant’s campaign against expanded rights for gay people and two years before the first reported case of an adoption by an openly gay person anywhere in the country. At the time, Bryant and other conservatives claimed that “the recruitment of our children is absolutely necessary for the survival and growth of homosexuality–for since homosexuals cannot reproduce, they must recruit, they must freshen their ranks.”

Back in March, two Florida lawmakers introduced legislation to overturn the state’s gay adoption ban, but were forced to withdraw the measure due to conservative opposition.

During Crist’s 2006 gubernatorial campaign, he issued a position paper which said that “he believes that children are best raised in a traditional family. Accordingly, he does not support repealing the ban on adoption by same-sex couples.”

The Boston Globe is reporting that Sen. Scott Brown (R-MA), who on Tuesday voted to filibuster a measure to gradually repeal Don’t Ask, Don’t Tell, is now lashing out against Harvard University President Drew Gilpin Faust for saying that the University would “continue barring ROTC from campus” unless the the ban against gays and lesbians is repealed. Brown also criticized Gilpin for supporting the DREAM Act and suggested that she would rather open the school to undocumented immigrants than military recruiters:

“Harvard President Faust has been lobbying on Capitol Hill in support of the DREAM Act, which would grant legal status to illegal immigrants attending college. Harvard has its priorities upside down,” the Massachusetts Republican said in a statement. “They should embrace young people who want to serve their country, rather than promoting a plan that provides amnesty to students who are in this country illegally.”

“I am extremely disappointed to learn of Harvard University’s decision to continue to ban ROTC from its campus,” he added. “It is incomprehensible to me that Harvard does not allow ROTC to use its facilities, but welcomes students who are in this country illegally.”

The obvious point to make is that the DREAM Act itself would allow “young people who want to serve their country” enlist in the service. The Act permits immigrants who meet all eligibility requirements and serve in the U.S. armed forces or attend college for at least two years to obtain regular lawful permanent resident status after six years. As Andrea Nill points out, many Military experts have come out in support of the DREAM Act because it would significantly increase the pool of qualified recruits in the Latino population, which comprises the majority of undocumented immigrants and which research indicates are more likely to enlist and serve in the military than any other group.

Brown posits false choice — he’s saying that given the option of allowing Harvard students access to ROTC recruiters on campus or providing young undocumented immigrants with legal status, Faust ignored the the needs of military. That’s a hard argument to make when the Defense Department supports the Act and if Brown had allowed the Senate to proceed with debate, we could be on the brink of ending DADT (which would allow recruiters back on campus) and opening up the ranks to those who want to serve their country.

With the failure of the Senate to even begin debating the defense authorization bill and an amendment to repeal Don’t Ask, Dont’ Tell some — including the New York Times — are now pressuring the White House not to appeal a recent California District Court ruling which found the policy unconstitutional. Activists argue that because the case challenges the law on its face, the decision could apply to the whole country and will end of Don’t Ask, Don’t Tell. The Justice Department has until tomorrow to file an appeal in the case filed by the Log Cabin Republicans.

Congress’s three openly gay members, Reps. Barney Frank (D-NY), Tammy Baldwin (D-WI), and Jared Polis (D-CO), are already drafting a letter to President Barack Obama, urging him not to appeal the decision and today, the Palm Center released a new analysis arguing that “the White House has a strong foundation for not filing an appeal to the recent case which declared ‘don’t ask, don’t tell’ unconstitutional.” DOJ has an obligation to defend existing law, the report notes, “[h]owever, it would be inaccurate to characterize this common practice as a mandatory requirement that DOJ must always defend federal laws in all cases, without exception”:

First, there is executive discretion to decline to defend federal law when the president believes the law intrudes upon his express constitutional authority, such as the commander-in-chief authority. [...]

Under the second exception, the executive branch has discretion to choose not to defend a federal law when that defense would involve asking the Supreme Court to disregard or alter one of its constitutional rulings….Under the second exception, the constitutionality of “don’t ask, don’t tell” has been seriously undermined by the Supreme Court’s ruling in Lawrence v. Texas, 539 U.S. 558 (2003). … Lawrence was the basis for Judge Phillips’s ruling in Log Cabin Republicans. She held that, after Lawrence, the government could no longer rest on unsupported congressional and military opinion alone. Before the government could impose sweeping restrictions on personal intimacy and autonomy, it had to offer evidence that “don’t ask, don’t tell” significantly furthered the government’s interest in military readiness, and that the policy was necessary to further that interest. However, in Log Cabin Republicans the government was unable to produce any evidence beyond the opinions offered in support of the law back in 1993.

Indeed, as AmericaBlog has consistently argued, administrations have a long history of refusing to defend certain laws:

In fact, George W. Bush (ACLU et al., v. Norman Y. Mineta – “The U.S. Department of Justice has notified Congress that it will not defend a law prohibiting the display of marijuana policy reform ads in public transit systems.”), Bill Clinton (Dickerson v. United States – “Because the Miranda decision is of constitutional dimension, Congress may not legislate a contrary rule unless this Court were to overrule Miranda…. Section 3501 cannot constitutionally authorize the admission of a statement that would be excluded under this Court’s Miranda cases.”), George HW Bush (Metro Broadcasting v. Federal Communications Commission), and Ronald Reagan (INS v./ Chadha – “Chadha then filed a petition for review of the deportation order in the Court of Appeals, and the INS joined him in arguing that § 244(c)(2) is unconstitutional.”) all joined in lawsuits opposing federal laws that they didn’t like, laws that they felt were unconstitutional. It is an outright lie to suggest that the DOJ had no choice.

As DADT scholar Nathaniel Frank explained last night to Rachel Maddow, Democrats now have three paths for repealing the law: the Senate can try to pass repeal during the lame duck session, President Obama could issue an executive order ending implementation of the policy, or the Justice Department could refuse to appeal the Log Cabin Republicans case. “The court case, I think, is one of the more likely now, for the President to say, this actually is unconstitutional and although there is a tradition of defending standing law, it’s not obligated to defend a policy that it believes is unconstitutional,” Frank added.

The White House has been reluctant to publicly advocate on behalf of repeal, however, and has previously indicated that it would not take steps beyond the legislative compromise to change the policy.

Yesterday, as Republicans successfully filibustered the 2011 Defense Authorization Bill and the repeal of Don’t Ask, Don’t Tell, President Bill Clinton told CBS’s Katie Couric that when he signed DADT into law, he was promised a far more lenient policy:

COURIC: Don’t Ask, Don’t Tell, do you ever regret it as a policy?

CLINTON: Oh yea, but keep in mind I didn’t choose this policy. Don’t Ask, Don’t Tell was only adopted when both Houes of Congress had voted by a huge veto proof margin to legislate the absolute ban on gays in the military if I didn’t do something else…They made it clear they would never let me order my executive order, gays to serve in the military…. And I got beat and so did they gay rights people got beat. [...]

Now, when Colin Powell sold me on don’t pass, don’t tell, here’s what he said it would be: Gay service members would never get in trouble for going to gay bars, marching in gay rights parades as long as they weren’t in uniform, getting gay materials for any of the places they went or any of the things they did, as long as they didn’t talk about it. That was what they were promised. That’s a very different don’t ask, don’t tell than we got. What we got as soon as General Powell retired, was this vicious mid and lower level officer feedback when they for a year or so made it worse than it had been before. Then it sort fo settled down. But the reason I accepted it because it was better than an absolute ban and because I was promised it would be better than it was.

Watch it:

Indeed, in his book Unfriendly Fire, DADT historian Nathaniel Frank writes that while President Clinton tried to hold firm on his campaign pledge to allow openly gay people to serve in the military, Congressional and military opposition forced him to compromise. Then-Sen. Majority Leader George Mitchell (D-ME) told Clinton that “[a]ny executive order can be overturned by act of Congress,” and eventually “Clinton began to make it clear that the compromise would involve only welcoming gays who did not engage in homosexual conduct, although the meaning of this was still being debated,” Frank wrote.

Clinton was assured that the military would not pursue witch hunts against gay soldiers, but his policy led to that and resulted in hundreds of other abuses. The regulations prevent the military from initiating cases, but they instruct commanders to begin investigations once a servicemembers’ orientation is known. As a result, the history of DADT is riddled with witch hunts and with discharges that feel like with hunts. Soldiers were both unintentionally outed by circumstances outside of their control or illegally pursued by their commanders. “The fact that the regulations were tightened by [Secretary of Defense Robert] Gates shows that there was plenty of room to tighten the regulations,” Frank told me.

“It is pretty disingenuous of Clinton, I mean he is on the right side now and he was on the right side then in hopes, but this is not about, he thought this was going to be a fine policy and would be fair and was just badly enforced,” Frank said. “This is about Clinton failed to get done what he tried to do, bless his heart he tried to do it. At a certain point he stopped spending political capitol and he lost. And since the end of his presidency in [19]98, [19]99, he’s been saying ‘the policy if out of whack, we should get rid of it,’ but he’s responsible for signing into law a bad policy.”

Major Mike Almy, a 13-year veteran of the Air Force who was relieved of his duties after a routine search of computer files uncovered emails to his same-sex partner, appeared on MSNBC’s Rachel Maddow show this evening to respond to Sen. John McCain’s (R-AZ) rather hysterical allegations that the military does not seek out gay soldiers or search private emails. That exchange, with journalists Kerry Eleveld and Chris Geidner, occurred only moments after Republicans successfully filibustered the 2011 National Defense Authorization Act.

“I was literally quite stunned when I first heard it,” Almy told Maddow. “As you know, I testified before the Senate Armed Services Committee in March and told my story”:

ALMY: Senator McCain was there. He sat 20 feet away from me and he listened to every word of my testimony. For him to make that statement today that the military does not search private e-mails tells me that he either didn’t listen to my testimony in this past March, he forgot what I said, or he’s being deliberately deceptive with the American public about the true nature of Don’t Ask, Don’t Tell and using partisan politics over the interests of national security. The simple truth is the Air Force searched my private e-mails in 2005 in Iraq. During the height of the insurgency they launched an investigation solely to look into my private e-mails, solely to determine if I had violated Don’t Ask, Don’t Tell and to find whatever evidence they could use against me. [...]So for Senator McCain to make that allegation, I’m just dumbfounded about where he comes up with that type of explanation, that type of an answer to a reporter and to be quite honest with you, I’m very angry at that statement today.

Watch it:

Earlier in the show, Maddow spoke to DADT scholar Nathaniel Frank about what the Democrats can now do to eliminate the policy. Frank laid out three paths: the Senate can try to pass repeal during the lame duck session, President Obama could issue an executive order ending implementation of the policy, or the Justice Department could refuse to appeal a recent federal district court decision which found DADT unconstitutional. “The court case, I think, is one of the more likely now, for the President to say, this actually is unconstitutional and although there is a tradition of defending standing law, it’s not obligated to defend a policy that it believes is unconstitutional,” Frank said.

This afternoon, immediately after the Senate failed to invoke cloture on a defense authorization measure which included an amendment to gradually repeal Don’t Ask, Don’t Tell, a group of journalists met with Sen. John McCain (R-AZ) to discuss the vote. Pressed by The Advocate’s Kerry Eleveld and Metro Weekly’s Chris Geidner about instances when the military actively sought to out gay troops, McCain grew defiant and insisted that the military does not “go out and seek to find out if someone’s sexual orientation”:

MCCAIN: We do not go out and seek. Regulations are, we do not go out and seek to find out if someone’s sexual orientation. We do not!

ELEVELD: But senator, that’s not…

MCCAIN: That is the fact! That is the fact. Now ma’am, I know the military very well, and I know what’s being done. And what is being done is that they are not seeking out people who are gay. And I don’t care what you say, I know it’s a fact.

ELEVELD: It’s not what I say.

MCCAIN: I dont’ care what you say! And I don’t care what others say. I’ve seen it in action. I’ve seen it in action. I have sons in the military, I know the military very well. So they’re not telling you the truth.

ELEVELD: Senator, just to make sure…

MCCAIN: Just to make sure. We do not go out and seek out and find out….

ELEVELD: Private emails are not being searched? Private emails are not being searched?

MCCAIN: …See if someone is gay or not. We do not go out and see whether someone is gay or not.

ELEVELD: There are documented cases…

MCCAIN: They do not, they do not, they do not. You can say that they are, you can say [inaudible] it’s not true!… Yea, I’d like to see…

GEIDNER: It is the case of Mike Almy, Senators.

MCCAIN: Bring them to our office. It is not the policy, it is not the policy, it is not the policy.

GEIDNER: But it is the case that it’s happening, Senator.

MCCAIN: It is not the policy, it is not the policy, it is not the policy You can say that it is the policy, sir if you choose to. It is not the policy. I would be glad to get that to you in writing.

Watch it:

While the Defense Department did adopt higher standards for discharging gay and lesbian soldiers in March, the military has dismissed servicemembers after discovering their sexual orientation in email records. For instance, Major Mike Almy — a 13-year veteran of the Air Force — was relieved of his duties after a routine search of computer files uncovered emails to his same-sex partner.

In fact, as Almy explained in testimoney before McCain’s own committee (Senate Armed Services): “In Iraq, during the height of the insurgency, someone in the Air Force ordered a search of my private emails solely to determine if I had violated “Don’t Ask, Don’t Tell”, and to gather whatever evidence could be used against me.” “I was relieved of my duties, leading nearly 200 Airmen, my security clearance was suspended and part of my pay was terminated. Even as my commander was relieving me of my duties, he assured me this was in no way a reflection of my performance or my abilities as an officer,” Almy testified.

Moments ago, in a 56-43 vote, Senate Democrats failed to invoke cloture on the 2011 National Defense Authorization Act, falling three votes shy of the 60 need to break a Republican filibuster. As is customary, Senate Majority Leader Harry Reid (D-NV) voted against the measure as a procedural tactic, allowing him to revive the bill at a later date. The result represents a major setback for advocates of repealing the military’s Don’t Ask, Don’t Tell policy and supporters of the DREAM Act.

Chances of invoking cloture began to fade early this afternoon, as moderate Republican Senators who support DADT repeal, used procedural explanations to substantiate their vote against starting debate on the measure. Along with concerns about voting to repeal the DADT policy before the Pentagon completed its year-long review and the suggestion that the DREAM Act was unrelated to national defense, the Republicans also complained that Majority Leader Harry Reid (D-NV) was limiting debate to just three amendments — DADT, DREAM, and secret holds. Reid, however, had made assurances that he would consider Republican amendments after the recess. Ignoring Reid’s concession, Republican moderates like Sen. Susan Collins (R-ME) took to the floor to equate repealing the ban against open service in the military to restricting the right of Republicans to offer alternative amendments:

– SEN. SUSAN COLLINS (R-ME): “I support the provisions in this bill. I debated for them; I was the sole Republican on the Committee that voted for the Lieberman-Levin language on don’t ask, don’t tell. I think it’s the right thing to do, I think it’s only fair. I think we should welcome the service of these individuals who are willing and capable of serving their country. But I cannot vote to proceed to this bill under a situation that is going to shut down debate and preclude Republican amendments. That too is not fair.”

– SEN. OLYMPIA SNOWE (R-ME): “First and foremost, the Senate should have the ability to debate more than the three amendments the Majority Leader is allowing…We should all have the opportunity to review that [DADT] report which is to be completed on December 1, as we reevaluate this policy and the implementation of any new changes”

– SEN. SCOTT BROWN (R-MA): “The majority party, I feel, is using our men and women in uniform as a tactic to pass politically expedient legislation entirely unrelated to the defense authorization. It is in my view not appropriate.”

– SEN. GEROGE VOINOVICH (R-OH): “The DREAM Act deals with immigration and shouldn’t be on this bill. ‘Don’t Ask, Don’t Tell’ is a controversial issue that needs to be debated on the Senate floor but I believe it would be logical to wait for the Department of Defense to issue its report on ‘Don’t Ask, Don’t Tell.’”

Democrats, who also today announced that they would likely adjourn a week early, say they plan to take up the act after the midterm elections. “We’re going to come back into session in November or December. I spoke to Sen. Reid today. He’s very clear and strong that he’s going to bring this bill to the floor in November or December,” Sen. Joseph Lieberman (I-CT) told the Washington Blade’s Chris Johnson. Lieberman also predicted that “opponents of the repeal of ‘Don’t Ask, Don’t Tell’ have enough votes to take that repeal out of this legislation,” something Collins confirmed in her floor speech today, saying that she would vote “against the amendment to strike don’t ask, don’t tell provisions from this bill.”

At a press conference earlier today, Durbin said that this is the first time since 1952 that the Congress failed to pass a defense authorization measure. “What would be unprecedented is if Republicans block the Senate from passing the defense authorization bill for the first time since 1952,” Durbin said.

As the Senate prepares to vote on cloture for the Defense Authorization Bill, Senators from both sides of the aisle used Gen. James Amos’ confirmation hearings to become the Marine Corps’ 35th Commandant, to pepper Amos about repealing Don’t Ask, Don’t Tell. Amos admitted that he personally opposes repealing DADT, but stressed that the Pentagon’s review of the policy would inform the military about how best to implement a repeal and allow the Marines Corp to change the policy “smartly.”

During one particularly heated exchange with Sen. Jeff Sessions (R-AL), Amos rebuffed the GOP’s argument that those who disagree with repeal would be silenced or chased out of the service:

SESSIONS: I want to know if you think it’s appropriate leadership position of the military if this policy is adopted to not allow people to have different views and for them to get out of the military.

AMOS: If you step away from the Don’t Ask, Don’t Tell there are lots of things that go on today in the American military that the average Marine out there might not agree with. But the one thing we have in the Marine Corp is we got discipline and we got leadership and those are the two things that are I think the one thing that’s going to carry they day for us should the law get changed. But there has never been a gag order, and I don’t anticipate one being put on the Marines. …I don’t see that that would be an issue….We have plenty of marines out there when marines disagree, and they disagree vocally.

Watch a compilation:

Amos also countered Sen. John McCain’s (R-AZ) argument that the Pentagon’s study won’t tell military leaders if repeal would undermine military effectiveness, insisting that “at the end of the day, when all of this information comes to whoever is the 35th Commandant of the Marine Corps in December….will be able to give his best military advise on that.”

“If this policy is changed. The last thing you’re going to see your Marine Corps do is try to step in and push it aside. That will simply not be the case,” Amos said. “There will be issues, we’re going to work through them.”

Last night, Lt. Dan Choi debated Bishop Harry Jackson, a member of the High Impact Leadership Coalition and an “all-purpose activist and pundit for right-wing causes”, about ending the Don’t Ask, Don’t Tell policy on DC’s WTTG Fox 5. Jackson regurgitated the familiar arguments about repeal undermining unit cohesion, military readiness and the religious freedom of military chaplains. Choi debated on the issue on Jackson’s turf. He recalled the lessons from Civil Rights movement and likened the prohibition of open gay service to racism in the military:

CHOI: I think when you fire people simply for their integrity, for their act of telling the truth about who they are, there is nobody who can say that any team, any organization is strengthened. When I put on this uniform, when I wore these clothes in combat in Iraq…I didn’t swear just to serve a certain kind of people. I didn’t swear to protect only a certain kind of religious liberties. I swore to protect everybody and for anyone on to get up on the TV and say that we cannot risk the truth or integrity, I think makes a mockery not only of what our country was founded on, but the Civil Rights movement and what scripture tells us. I was raised in a religious tradition as well and I…[...]

You know, something that we learned in Iraq is that when a military is subordinated to the interests of a religious minority or a religious group of any sort, you have the same kind of social problems that the Middle East has that the countries that we are trying to liberate and to improve have and I don’t think that America is built on those same foundations….I’ve faced racism in this country and homophobia and Harry Jackson I think it feels exactly the same.

Watch it:

“When you ask me why don’t I wait,” Choi continued, “I learned the same lessons in school from all of the Civil Rights leaders who said that our American promise is not just for some people, not just for straight people, but for all people and anybody who thinks otherwise I think needs to look at the history books again.” “Discrimination does not need to be studied. It is wrong, period,” he concluded.

A new AP-National Constitution Center Poll finds that individuals who oppose marriage equality — including President Obama — are quickly falling outside of the political mainstream, as a growing number of individuals are now embracing the idea. Support for marriage has exceeded the 50 percent mark in at least 17 states, but now, for the first time, a national poll has found that 52% of Americans believe that the federal government should “give legal recognition to marriages between couples of the same sex”:

This poll comes on the heels of another survey which found that a majority of Americans are also saying that “their definition of family includes same-sex couples with children, as well as married gay and lesbian couples.” The increasing visibility of LGBT issues, positive media representations, and the coming out of family members and friends have all contributed to the increase in support. Significantly, the nation crossed the 50 percent mark on marriage after Judge Walker’s Prop 8 decision, suggesting that his ruling (and the GOP’s quiet response) may have also played some role in changing hearts and minds.

Still, popular support does not necessarily translate into political action or repeal the many state prohibitions against extending marriage benefits to gays and lesbians. Backers of marriage are much more likely to live in large cities on the coast, giving senators from middle America almost no political reason to support the policy. But as the younger younger new voters come of age, and as their older counterparts exit the voting pool, it’s likely that support will only increase — as will the political will to actually do something about it.

The poll also found that 58 percent of Americans believe that “couples of the same sex (should) be entitled to the same government benefits as married couples of the opposite sex.” Fifty-six percent also agree that “Judges should interpret laws broadly, taking into account the broader interests of the nation.”