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What Now? Where do we go after "Don't Ask, Don't Tell."

What Now? Where do we go after "Don't Ask, Don't Tell."

Walking downtown towards the White House yesterday, I passed the Old Executive Office Building. An often overlooked piece of architecture, it is currently (and has been for some time) covered in scaffolding. I have never seen a workman on the site. In fact, no progress has been made in the four months I've been in the District. The OEOB seemed to be in a perennial state of disrepair. For a while, it felt like a metaphor for the American government - surviving, but in need of a lot of support.

Recent events have changed my mind. It's taken a few weeks for the reality to sink in - after seventeen years, we finally repealed "Don't Ask, Don't Tell." This has been a truly historic time for our military and for America. However, the success of our endeavors has been followed by concern over the next steps in the process of repeal - certification and proper implementation. The victory was certainly sweet, but it is clear that the battles ahead are likely to be just as emotionally draining.

Although the President has signed the bill, American service members who come out are still at risk for investigation and discharge. In fact, "Don't Ask, Don't Tell" will still be the law until 60 days after the Commander-in-Chief, Secretary of Defense, and Chairman of the Joint Chiefs certify repeal.

What is Certification?

The President will transmit to the congressional Armed Services Committees a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, stating each of the following:

  • That all signatories have considered the recommendations contained in the report, and the report's proposed plan of action.
  • That the Department of Defense has prepared the necessary policies and regulations to exercise the discretion they are provided.
  • That the implementation of necessary policies and regulations is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.

However, even at this point, "Don't Ask, Don't Tell" will still be the law, and service members can still be discharged.

Repeal Effective 60 Days After Certification Transmittal:

Only sixty days after the President transmits written certification to the congressional Armed Services Committees will the full repeal of "Don't Ask, Don't Tell" become effective.

Executive Order by the President:

However, merely repealing "Don't Ask, Don't Tell" won't ensure that lesbian, gay, and bisexual service members can serve free of discrimination (though they cannot be discgharged). Policies and regulations will still need to be written and put in place. At this point, it will be important to encourage the President to issue an executive order protecting service members from discrimination based on their actual or perceived sexual orientation. This is an opportunity for the President to show strong leadership by adding non-discrimination on the basis of sexual orientation to the uniform side of the military.

The Future:

More than 13,500 people were discharged under "Don't Ask, Don't Tell." The question of reinstatement was addressed earlier this year in a Pentagon study, which recommended that ousted gays and lesbians "be considered for re-entry, assuming they qualify in all other respects." The study concluded that their violation of the policy should not be held against them, reopening career paths for thousands of discharged troops.

Less clear is the future of the many lawsuits still in progress. Discharged servicemembers generally get a severance payment to help adjust back to civilian life, however dismissal under "Don't Ask, Don't Tell" saw that payment cut in half. Many servicemen and women are part of an ACLU lawsuit trying to recoup the rest of the money, and the effect of repeal on their endeavors is still unclear. Similarly, there are legal questions where the military has paid for a servicemember to attend school in exchange for years of service. When dismissed under the policy, the government recoups its tuition payment. Many of these individuals have claims in progress against the government, and the military doesn't know yet how it will answer any of these questions. It is possible the Department of Defense and the Department of Justice will have satisfactory answers for all these legal issues, but there is also a chance that a judge will have the final say. In this instance, the repeal may only be acknowledged when looking forward, and not backwards, leaving those who have suffered most out in the cold.

Hence, the battle is not over yet. There are many new questions to be answered, and we must keep the pressure (and the public eye) on the upcoming process of certification and implementation. It is crucial we ensure that the victory won is not undermined behind closed doors. So keep celebrating, but also keep an eye out...

Published: 1/06/2011

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