Time's Running Out to Repeal Military's 'Don't Ask'

WASHINGTON (Nov. 9) -- For advocates of overturning the military's "don't ask, don't tell" policy on gays, there is a new imperative: Don't delay.

As lawmakers prepare for next week's post-election session of Congress, time is running out for President Barack Obama to make good on his pledge to allow gays to serve openly in the military.

With tax cuts, a nuclear-arms treaty and several other issues on the crowded schedule, and Republicans intent on stripping a proposed repeal out of a must-pass defense bill, Democrats may not get another chance at changing the law until at least 2013. And then only if they can regain control of the House and don't lose their grip on the Senate.

"We feel we'll have just enough time in the lame-duck [session] to get this through," Winnie Stachelberg of the Center for American Progress Action Fund told reporters.

And if it doesn't get done before the 112th Congress gets to town in January? "Prospects are very grim," she said.

As last week's election results sank in and attention shifted to the unfinished business on Capitol Hill, the outlook for a repeal did indeed look bleak.

"Drive to Repeal 'Don't Ask' Policy All but Lost for Now" the Wall Street Journal reported, citing the omission by White House spokesman Robert Gibbs of gays in the military in a list of the president's priorities for next week's session.

Not so fast, said other administration officials.

White House spokesman Dan Pfeiffer issued a statement saying the administration opposed stripping "don't ask, don't tell" from the defense authorization bill that is the vehicle for its passage.

Senate Majority Leader Harry Reid's spokesman went one better with a tweet: "@SenatorReid strongly supports repeal of #DADT but he can't do it alone. @Senate_GOPs need to agree to at least debate the issue."

And, most significantly, Defense Secretary Robert Gates this week said for the first time that he wants to see the policy repealed before a new, less amenable Republican-controlled House is sworn into office in January.

So far, the ranking member of the Senate Armed Services Committee isn't budging. Sen. John McCain, R-Ariz., whose position has shifted on the issue and whose daughter Meghan has said it was "awkward to hear and watch" him talk about it, led a filibuster in September to block a vote on the defense bill because it included a repeal already passed by the House. Now he is huddling behind closed doors with the committee chairman, Sen. Carl Levin, D-Mich., to strip out the provision.

If Republicans are unable to dispense with the repeal, they could be forced to oppose a bill that includes troop pay raises and veterans' benefits, a politically embarrassing vote that Democrats will no doubt use in campaign ads two years from now.

McCain and nine other senators -- including several centrist Democrats -- have said they want to see a Pentagon report on how to implement a repeal and an accompanying survey of troops before they make up their mind. The report is due to Congress Dec. 1, and the Pentagon has no intention of speeding up delivery. Leaks indicate most troops are comfortable serving alongside openly gay and lesbian colleagues or have no opinion.

Once the report is delivered, Obama must send a written certification to the House and Senate Armed Services committees saying that he, Gates and the chairman of the Joint Chiefs of Staff, Adm. Michael Mullen, agree that repealing the law will not jeopardize or hamper military readiness or effectiveness.

Congress has 60 days to review the certification and the Pentagon's policy recommendations, but if all that time is taken, that would put the matter in the hands of the next Congress. And that, say opponents of the policy, would be too late.

"If Congress does not act to repeal 'Don't Ask, Don't Tell' in an orderly manner that leaves control with our nation's military leaders, a federal judge may do so unilaterally in a way that is disruptive to our troops and ongoing military efforts," said Sens. Joe Lieberman, Mark Udall and Kirsten Gillibrand in a statement. "It is important that 'Don't Ask, Don't Tell' be dealt with this year, and it appears that the only way that can happen is if it is on the defense bill."

A federal judge in California ruled in September that the policy was unconstitutional and issued an injunction barring the military from enforcing its ban on openly gay troops. An appeals court acting at the request of the Obama Justice Department, which wants lawmakers and not judges to lift the policy, ruled in favor of keeping the rule while it studies the issue.

Last week, the Republican gay rights group that brought the case asked the U.S. Supreme Court to step in. It could take years before the high court gets around to it.

In the meantime, advocates for repeal worry their moment may soon pass. If it does, all eyes will turn to Obama, whom gay rights activists have accused of moving too slowly on their concerns.

In what could be a clarion call in coming months, liberal blogger Adam Serwer urged Obama to issue an executive order to repeal the policy if McCain continues to stand in the way of a vote. The move, he noted, would not be unprecedented. That's what President Harry Truman did when another powerful senator blocked him from desegregating the Army through legislative action.