Legal Commentary

Closer and closer

By Dale Carpenter

to a repeal of Don?t Ask, Don?t Tell. Sen. Ben Nelson (D-Nebraska) has now said he will vote for repeal, Politico reports:

?I don?t believe that most Nebraskans want to continue a policy that
not only encourages but requires people to be deceptive and to lie.
The ?Don?t Ask, Don?t Tell? policy does just that,? Nelson said. ?It
also encourages suspicion and senior officers to look the other way.
In a military which values honesty and integrity, this policy
encourages deceit.?

?I will support the Lieberman compromise because it removes politics
from the process. It bases implementation of the repeal on the
Pentagon?s review and a determination by our military leaders that
repeal is consistent with military readiness and effectiveness, and
that the Pentagon has prepared the necessary regulations to make the
changes,? he said, adding that he spoke with Defense Secretary Robert
Gates about the issue.

?He advised that while he preferred waiting until the study is
completed, he can live with this compromise,? Nelson said.

Add that to pledges from Susan Collins (R-ME) and moderate Democrats Evan Bayh (Indiana) and Bill Nelson (Florida) to support repeal. While some gay activists and analysts have denounced the proposal as too weak because it does not actually require the military to stop discharging gay personnel, that criticism is misplaced. This is a ?compromise? that eviscerates the statutory basis for the 16-year-old policy.

UPDATE:  Developments are coming quickly.  The Weekly Standard says that Sen. John McCain is organizing resistance to the repeal, releasing letters from the heads of the military branches opposing it until the Pentagon review of the policy is completed in December.  By then, it would be much more difficult to repeal the policy because a repeal would be subject to filibuster.  Additionally, action after this year would be more difficult because the next Congress is likely to be less supportive of repeal.

FURTHER UPDATE: The duel of generals has begun. Former Joint Chiefs Chairman General John Shalikashvili responds to the military chiefs. Even Sen. Robert Byrd (D-WA) is on board. That makes 16 votes on the Senate Armed Services Committee.

Full post as published by The Volokh Conspiracy on May 26, 2010 (boomark / email).