Obama can halt Gay discharges with Exective Order, study shows

sabrina 1

(1000+ posts) Send PM | Profile | Ignore

Thu Oct-14-10 05:00 PM
Original message

Obama can halt Gay discharges with Exective Order, study shows

This study conducted by Military Law Experts was released on May 11th, 2009. It shows that the U.S. president does have the legal authority to stop Gay discharges with a single order:

NEW STUDY: OBAMA CAN HALT GAY DISCHARGES WITH EXECUTIVE ORDER

SANTA BARBARA, CA, May 11, 2009 � A study released by the Palm Center and written by a team of military law experts shows that the president has the legal authority to end gay discharges with a single order.

After the Palm Center first proposed the executive option, the idea of ending the ban by presidential order gained momentum. Congressman Rush Holt endorsed an executive order and National Security Adviser James Jones was then asked about it by George Stephanopoulos.

Prior to the release of Palm's study, many had argued that only Congress can lift the ban on service by openly gay troops. But according to the study, Congressional approval is not needed. Dr. Aaron Belkin, Director of the Palm Center and a study co-author, said �The administration does not want to move forward on this issue because of conservative opposition from both parties in Congress, and Congress does not want to move forward without a signal from the White House. This study provides a recipe for breaking through the political deadlock, as well as a roadmap for military leaders once the civilians give the green light.�

The study says there are three legal bases giving the President this authority:

First, Congress has already granted to the Commander in Chief the statutory authority to halt military separations under 10 U.S.C. � 12305, a law which Congress titled, �Authority of President to suspend certain laws relating to promotion, retirement, and separation� Under the law �the President may suspend any provision of law relating to promotion, retirement, or separation applicable to any member of the armed forces who the President determines is essential to the national security of the United States� during a �period of national emergency.� The statute specifically defines a �national emergency� as a time when �members of a reserve component are serving involuntarily on active duty.�

The second and third bases of presidential authority are contained within the �don�t ask, don�t tell� legislation itself. The law grants to the Defense Department authority to determine the process by which discharges will be carried out, saying they will proceed �under regulations prescribed by the Secretary of Defense� in accordance with procedures set forth in such regulation." Finally, the law calls for the discharge of service members �if� a finding of homosexuality is made, but it does not require that such a finding ever be made.

Emphasis mine.

'Don't ask'! So if no one asks, then there can be finding. I wonder if someone tells without being asked, a snitch eg. can that be dismissed under the law since no one asked?

Stop Loss

How does 'Stop Loss' apply to Gay Troops?

Diane H. Mazur, Professor of Law at the University of Florida College of Law and another study co-author, said the presidential authority to stop firing gay troops, known as �stop-loss,� is different from the highly unpopular stop-loss policy that the Army recently announced it would phase out. �That use of stop-loss forcibly extends service by those who wish to leave the military,� she said, �whereas suspending discharges for homosexuality would do the opposite: allow ongoing service by those who wish to remain in uniform.� The study says the provisions of the stop-loss law, which are granted by Congress, are �sensible because they give the President authority to suspend laws relating to separation when a national emergency has strained personnel requirements.�

Are we still in a State of Emergency

Yes. America is Still in an Official State of Emergency

On September 11, 2001, the government declared a state of emergency. That declared state of emergency was formally put in writing on 9/14/2001:

NOW, THEREFORE, I, GEORGE W. BUSH, President of the United States of America, by virtue of the authority vested in me as President by the Constitution and the laws of the United States, I hereby declare that the national emergency has existed since September 11, 2001 . . . ."
That declared state of emergency has continued in full force and effect from 9/11 to the present.
On September 10 2009, President Obama continued the state of emergency:
The terrorist threat that led to the declaration on September 14, 2001, of a national emergency continues. For this reason, I have determined that it is necessary to continue in effect after September 14, 2009, the national emergency with respect to the terrorist threat.

That declared state of emergency has continued in full force and effect from 9/11 to the present.

On September 10, 2009 President Obama extended the State of Emergency before it ended:

The White House

THE WHITE HOUSE
Office of the Press Secretary
___________________________________________________________________________
For Immediate Release September 10, 2009

TO THE CONGRESS OF THE UNITED STATES:

Section 202(d) of the National Emergencies Act, 50 U.S.C. 1622(d), provides for the automatic termination of a national emergency unless, prior to the anniversary date of its declaration, the President publishes in the Federal Register and transmits to the Congress a notice stating that the emergency is to continue in effect beyond the anniversary date. Consistent with this provision, I have sent to the Federal Register the enclosed notice, stating that the emergency declared with respect to the terrorist attacks on the United States of September 11, 2001, is to continue in effect for an additional year.

The terrorist threat that led to the declaration on September 14, 2001, of a national emergency continues. For this reason, I have determined that it is necessary to continue in effect after September 14, 2009, the national emergency with respect to the terrorist threat.

BARACK OBAMA

THE WHITE HOUSE,
September 10, 2009.

This seems to eliminate all the arguments against the POTUS being able to issue and executive order halting the dismissal of Gay Troops under DADT.

The recent ruling by a Federal Judge seems to back up this study:

Federal Judge Orders 'Don't Ask, Don't Tell' Injunction

SAN DIEGO (Oct. 12) -- A federal judge ordered the military Tuesday to immediately stop enforcing its ban on openly gay troops, bringing the 17-year "don't ask, don't tell" policy closer than it has ever been to being abolished.

Justice Department attorneys have 60 days to appeal the injunction but did not say what their next step would be.

President Barack Obama has backed a Democratic effort in Congress to repeal the law, rather than in an executive order or in court.

I do not know why this is such a problem anymore. A majority of Americans now support the repeal of DADT:

Poll: 78 percent favor repealing 'Don't ask, don't tell'

More than three-fourths of Americans favor repealing "Don't ask, don't tell," according to a new CNN poll.

A full 78 percent of respondents said that "people who are openly gay or homosexual" should be able to serve in the armed forces. The results are similar to what CNN found in December of 2008 (81 percent) and May of 2007 (79 percent).

There doesn't seem to be any political risk for Democrats by the repeal of the law. Those numbers cross political lines and are verified in other polls.

So what is holding up granting Gays their civil rights on this issue?

Just do it!