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Major move on military gays (UPDATED)

UPDATE Friday a.m. Defense Secretary Panetta and Joint Chiefs Chairman Mullen will meet with President Obama at the White House at 2:45 p.m. Friday, presumably to hand over their reports on the military’s readiness to end the “don’t ask/don’t tell” policy 18 years after it began.


The  Pentagon plans to begin on Friday the final steps toward actual repeal of the U.S. military’s “don’t ask/don’t tell” policy against gay and lesbian service members, bringing its end in about 60 days, according to reports circulating in Washington Thursday night.  Defense Secretary Leon E. Panetta and the Pentagon’s top military officer, it is understood, are scheduled to tell President Obama that the military is ready and can now handle the end of the 18-year-old policy that prevents homosexuals from serving openly in uniform.  That could end a historic court battle.

When the Pentagon leadership takes the expected step, government lawyers have already told a federal appeals court, the President will promptly take his own final action toward the policy’s end.   That will start the running of a 60-day clock to actually bring about the repeal — a timetable that would indicate that the end would come on Sept. 19, if the President completes action Friday, or soon afterward — somewhat earlier than had been expected.

If the unofficial reports Thursday prove true, Justice Department lawyers are expected — perhaps by the end of the day Friday — to notify the Ninth Circuit Court.  A filing from the Department had been due at noon. California time (3 p.m. Washington) Friday in the ongoing case before the Ninth Circuit in Log Cabin Republicans v. Panetta (Circuit docket 10-56634).  A federal judge in California struck down the policy in that case, and the Obama Administration then appealed to the Ninth Circuit.

For the past week, Obama Administration lawyers have been engaging in an energetic new attempt to seize back from the courts the control of the timetable for casting aside the “don’t ask/don’t tell” policy, so that the Pentagon and military commanders in the field would be making the crucial shutdown moves.    That control had appeared to pass, at least in part, to the Ninth Circuit.  It had ordered an end to the policy on July 6, but is now pondering an Administration plea to reconsider.

Even while weighing what to do next about continued enforcement of the policy before it is formally repealed, the Circuit Court has signaled that it may declare the pending court case to be moot, perhaps right after the President publicly proclaims that all conditions for repeal have been met.

Congress passed the law to repeal the 1993 ban on gays in the military last December.  But it made a condition of repeal reports  by the President, the Defense Secretary, and the chairman of the Joint Chiefs of Staffs that would formally certify that the Pentagon has adopted the necessary rules and training to implement the ban, and that implementation of the repeal “is consistent with….military readiness, military effectiveness, unit cohesion, and recruiting and retention of the armed forces.”

That is the formal certification that Secretary Panetta and the Joint Chiefs chairman, Adm. Mike Mullen, reportedly are going to make on Friday.  Just last week, the Pentagon general in charge of implementing the repeal had said in a court filing that those declarations would come “by the end of July or early in August.”  It is unknown whether Panetta and Mullen moved up the timetable, or whether the earlier report was merely being cautious.

In a filing in the Ninth Circuit on Monday, government lawyers said that, once the Secretary and the Joint Chiefs chairman have made their formal declarations that the military is ready, “the certification decision will promptly be presented to the President.”   There is, of course, no doubt that he would then make his own certification.

That presidential declaration, under the terms of the repeal law, is the last of the required conditions for repeal.  The repeal, the law said, “shall take effect 60 days after the date on which the last” condition had been met.

As part of the Administration’s most recent efforts to take back the initiative on the repeal, it had asked the Circuit Court to drop plans for a September hearing on the constitutionality of the policy, before the repeal act was passed by Congress.  The Circuit Court has set that hearing date for Sept. 1.   Whether it will keep that date is now uncertain.

Recommended Citation: Lyle Denniston, Major move on military gays (UPDATED), SCOTUSblog (Jul. 21, 2011, 9:46 PM),