BREAKING: Obama fails to intervene, Lt. Col. Fehrenbach asks Judge to block his DADT discharge

[Bluebear]

Via James Dao at The New York Times, a critical move by Lt. Col. Victor Fehrenbach and his attorneys at Servicemembers Legal Defense Network (SLDN) and Morrison & Foerster. Fehrenbach has gone to court to prevent his imminent discharge under DADT:

On Wednesday, Colonel Fehrenbach’s lawyers filed papers in Idaho federal court requesting a temporary order blocking his discharge. The petition contends that a discharge would violate Colonel Fehrenbach’s rights, cause him irreparable harm and fail to meet standards established in a 2008 federal court ruling on don’t ask, don’t tell.

For advocates of abolishing the ban against gay men, lesbians and bisexuals serving openly, Colonel Fehrenbach’s case has become something of a line in the sand. Though President Obama has called for ending the ban and Congress has begun moving in that direction, gay service members continue to face investigations and discharge, albeit at a lower rate than in past years.

Lawyers for Colonel Fehrenbach assert that his case is among the most egregious applications of the policy in their experience. The Air Force investigation into his sexuality began with a complaint from a civilian that was eventually dismissed by the Idaho police and the local prosecutor as unfounded, according to court papers. Colonel Fehrenbach has never publicly said that he is gay.

However, during an interview with an Idaho law enforcement official, he acknowledged having consensual sex with his accuser. Colonel Fehrenbach’s lawyers say he did not realize Air Force investigators were observing that interview; his admission led the Air Force to open its “don’t ask” investigation.
The request for the TRO was filed this afternoon in Federal Court in Boise, Idaho.

Fehrenbach's legal team is playing hard ball with the the Air Force, the Pentagon and the Obama administration -- and they should. If the TRO isn't granted, Fehrenbach could be discharged any day.

http://www.americablog.com/2010/08/breaking-lt-col-fehrenbach-asks-judge.html

[Renew Deal]

1. Everything is Obama's fault.

[Bluebear]

3. Obama could stop it immediately, ostrich.

[fogonthelake]

4. Yes, as CIC he could.

[Bluebear]

8. That poster only cares about Obama, not the people he serves.

[VMI Dem]

10. +1000.

[QC]

21. Unfortunately, that's a very common affliction in these parts. n/t

[laughingliberal]

78. +1000 nt

[Jax]

149. Bluebear nails it

Even when it was Bleachers7 it was the same thing.

[QC]

151. Yep. n/t

[Canuckistanian]

157. +1000 n/t

[msanthrope]

51. How, precisely, can the President override an Act of Congress????

I've asked this question many times before, and I never get an answer.....but could someone kindly explain how an EO overrides a statute????

[laughingliberal]

80. He could stop discharges through stop/loss provisions or an executive order suspending discharges

...pending result of the military review process. He won't. But he could.

[msanthrope]

87. How does that happen when stop-loss specifically doesn't cover homosexuality?

By statute, it's a specific carve out, along with pregnancy and other things.

See p. 13 ftn 29

http://docs.google.com/viewer?a=v&q=cache:TM4dnTC3GlsJ:www.dtic.mil/cgi-bin/GetTRDoc%3FAD%3DADA484814%26Location%3DU2%26doc%3DGetTRDoc.pdf+sharon+alexander+stop-loss+sldf&hl=en&gl=us&pid=bl&srcid=ADGEEShrchypZpLv7oYJHI3vDkcKfic2b31SPrjl7YmnuMEgHYLs2yIvj9N290k21ZuET6J3EzK5hFWzwne5NukSj00rsE5NTbGqErSIwVEeQSy7dd0qlrxr8kIsqWdMIYMCDu0kyUvx&sig=AHIEtbSpQe5daCVFF6hAVbhzgwEmLeK50w

Again, will no one explain to me how an EO can override a statute of Congress??

[laughingliberal]

91. Perhaps, if you wanted to know, you could check local listings for a rerun of Rachel's show tonight

and stop dogging people who were interested enough to see it and hear the explanations for themselves.

[msanthrope]

94. That is TOTALLY what the President of the United States should rely on!!!!!

Some dude on Rachael Maddow....and that's exactly what Fehrenbach's attorneys should cite.

Has it occured to ANYONE that persuasive legal authority might be a GOOD THING????

[seattleblue]

105. The law specifically allows the President to suspend discharges

for DADT for national security reasons. http://www.palmcenter.org/press/dadt/releases/New+Study+Says+Obama+Can+Halt+Gay+Discharges+With+Executive+Order I hope your question is answered.

[msanthrope]

131. Hey, you're a lawyer.....

can you explain something to me?

The Palm Report's lead author is a political science teacher, not a military lawyer, so it's not surprising that the SLDN doesn't agree....

If you read Sharon Alexander (a military lawyer's) analysis, she points out that the carve out hasn't been addressed....and explains how repeal is the only legal option that will survive challenge. FYI--she's worked for SLDN and HRC, and her service to this country was unimpeachable....



http://docs.google.com/viewer?a=v&q=cache:TM4dnTC3GlsJ:www.dtic.mil/cgi-bin/GetTRDoc%3FAD%3DADA484814%26Location%3DU2%26doc%3DGetTRDoc.pdf+sharon+alexander+stop-loss+sldf&hl=en&gl=us&pid=bl&srcid=ADGEEShrchypZpLv7oYJHI3vDkcKfic2b31SPrjl7YmnuMEgHYLs2yIvj9N290k21ZuET6J3EzK5hFWzwne5NukSj00rsE5NTbGqErSIwVEeQSy7dd0qlrxr8kIsqWdMIYMCDu0kyUvx&sig=AHIEtbSpQe5daCVFF6hAVbhzgwEmLeK50w

How does suspension of a Congressional statute by EO survive judicial challenge????

Because the report you cited==the Palm--- doesn't address that.

So, answer this....

Since 'homosexuality' is a specific carve-out to stop-loss, by what mechanism does the President toss the carve-out....and also toss DADT?

How does it survive legal challenge using a Youngstown and progeny framework?

[seattleblue]

136. The EO would survive because the statute provides for it.

President Obama can't just issue an EO suspending or overriding a statute. That would be tossed out by any court. But in this particular case the law gives permission to the President for "national security" reasons (however the president defines that) to issue an EO stopping the discharges. I am very disappointed Obama has not used this provision to stop the military from discharging gay Arabic translators which we need in Iraq.

[msanthrope]

138. Explain that, using the framework of Youngstown and progeny.....

1) Cite how the statute provides for the override.

2) Cite how the override meets a 'national emergency.'

3) Explain how judicial deference is triggered, using Youngstown and progeny....

Seriously, you and I both know Obama can issue whatever he wants...but explain how

1) this survives challenge, and

2) how this doesn't then exempt congress from doing their fucking job pending the disposition.....


Oh--and as I've stated before, I think the only sane legal strategy--anticipating SCOTUS, is getting Congress to repeal its own mess, followed by an EO that cites military readiness. Ultimately, I see no other way of getting Kennedy on board.

ETA--there's a reason the SLDN, as I cited above, DOES NOT think an EO is a good idea....and Sharon Alexander is worth a google if you doubt her legal acumen.

[seattleblue]

148. As you know Youngstown only comes into play when

Presidential actions and congressional statutes are in conflict. Presidential authority is strongest when a statute permits him to take an action. Here the statute does permit him to issue a EO. The president can halt military separations under 10 U.S.C. § 12305. 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.”

I think in wartime (which now is all the time) a president could get away with defining a national emergency however he wanted to and nobody would seriously challenge him on it.

As far as exempting Congress from doing their job, yeah they would probably use it as an excuse to do nothing. But how would that be different than right now when they are doing jackshit about the issue?

[msanthrope]

150. Okay, now here's the problem...that doesn't solve the conflict with 10 us 654.

You've correctly identified that stop-loss can be modified by the President.

But, what you are asking is that he attack the exemptions to stop-loss, directly contradicting a finding of Congressional law from the DADT statute (10 us 654) AND directly conflicting with military policy.

See, it's not just 10 us 12305.*** You've got the inherent conflict with DADT findings...and nothing overrides the detrimental findings--which then corrodes the Youngstown authority....

***See 2 and 3 for the Repuke argument why 10 us 12305 is in conflict.


1) You have a finding by congress that homosexuality is detrimental to military cohesion. So, athough you may issue a EO that modifies 10 ss 12305, you haven't addressed the essential conflict with the DADT statute--and military policy.

So, the deference that Youngstown would invoke normally, isn't to be relied on. This is why the President went the repeal/military approval route---he wants all THREE aspects in concert...then you get Youngstown.

I mean, you don't change military policy on a dime. To make a change this momentous, you need findings, studies, action by the brass--it's why you have surveys and the like.

I'm essentially outlining the Repuke challenge here--Youngtown protection DOES NOT invoke because you have conflicts with DADT, and the military...the President is making a political decision, NOT one that comports with the term "essential to the national security."

2) How do you meet the term, "essential to the national security of the United States." You've had a finding by congress in DADT that homosexuality is detrimental to Unit cohesion....in 10 us 654. So how do gays help security, the repukes would argue.

Again, the agreement between Executive/Congressional power that would invoke Youngstown protection, is then ABSENT....in this case, in both DADT, AND in 10 us 12305 (collateral attack.)

3) How do you declare "national emergency?" As in 2, you've had a direct finding of detriment.

So the repukes would argue that if we are really in a national emergency, then why aren;t we keeping the people, also exempt, who have NOT been found to be 'detrimental.'

Like, pregnant women. So again, this points up this being a political decision, and NOT one that is based on the emergency or need...which is conflict with Congressional intent, the Repukes would argue...as in they never intended 10 us 12305 to be used as political football.

That's an argument that can go far. And take a long time.

So you understand why SLDN thinks EO/stop loss is an no go? And why I do, too?

Repeal, and change in mil policy supported by facts, studies, and findings, is the way to go. It will take longer, but has the best chance of success.

[JonLP24]

106. Here

Military Law Experts can explain why.
http://www.palmcenter.org/press/dadt/releases/New+Study+Says+Obama+Can+Halt+Gay+Discharges+With+Executive+Order

[msanthrope]

137. The lead author on this report is a Poli Sci teacher, not a military lawyer....

So of course, the Palm Report didn't address the issue that the SLDN raised--since 'homosexuality' is one of the carve out exemptions to stop loss, how do you get around that????

Here's a report, by Sharon Alexander (a military lawyer, also with SLDN and HRC) that addressed the issue---

http://docs.google.com/viewer?a=v&q=cache:TM4dnTC3GlsJ:www.dtic.mil/cgi-bin/GetTRDoc%3FAD%3DADA484814%26Location%3DU2%26doc%3DGetTRDoc.pdf+sharon+alexander+stop-loss+sldf&hl=en&gl=us&pid=bl&srcid=ADGEEShrchypZpLv7oYJHI3vDkcKfic2b31SPrjl7YmnuMEgHYLs2yIvj9N290k21ZuET6J3EzK5hFWzwne5NukSj00rsE5NTbGqErSIwVEeQSy7dd0qlrxr8kIsqWdMIYMCDu0kyUvx&sig=AHIEtbSpQe5daCVFF6hAVbhzgwEmLeK50w

Now, lastly, the Palm report's lead author has now backed the President's LEGISLATIVE initiative--not the EO route....

"Aaron Belkin, the director of the Palm Center, said via e-mail on Monday night, ''This policy has been incredibly difficult to dismantle, and only Presidential leadership could rip it down. That's what we got today.''

The Palm Center has been a leading source of academic research on the policy over the past decade, and Belkin, who has been skeptical of the chances of repeal this year, said, ''The White House showed real leadership today in dismantling 'Don't Ask, Don't Tell.'''

more at link
http://www.metroweekly.com/news/?ak=5227

[nadinbrzezinski]

5. He could issue an executive order

but you already knew that.

[msanthrope]

45. Can you explain to me how an executive order overrides an Act of Congress?

I've asked this of many posters, and I've yet to get a reply that answers just how an EO overrides a statute.

[dsc]

47. two things

One, supposedly these kinds of discharges aren't supposed to be happening (he was outed by someone else) and two, it is called stop loss. If you can order people whose terms are up to stay in despite that fact we can surely order that these people stay at least for the duration of the war, which appears to be endless.

[msanthrope]

50. I'm sorry....but what?????

Could you cite any actual sources, such as court proceedings, laws, decsions, that back up what you say????

Again, kindly answer for me just how an EO overrides a statute?????

[dsc]

54. I'll try to avoid big words

The first refers to the change announced by defense secretary Gates. According to him we were no longer going to expell people who were outed by others like the case in the OP. So clearly they think they can do this or at least claimed that when it was convenient for them to do so. The second refers to the policy that has been in effect since the start of the Iraq war. Thousands of troops who didn't wish to stay in have been forced to do so under this policy. Obama has every right to use this policy to keep gay people in the military. Stop loss is permitted to stay in effect as long as we are in either Iraq or Afghanistan. I hope this has explained it to you sufficiently. If you don't know what stop loss is, here is a link.

http://en.wikipedia.org/wiki/Stop-loss_policy

and here is the link to back up what I said about Gates announcing a change in policy (that Congress didn't pass BTW)

http://abcnews.go.com/Politics/gays-military-pentagon-announce-humane-approach/story?id=10194160

[msanthrope]

59. Ah!!! WIKILAW!!!!

Look, try the big words this time....

1) Cite the statute and subsection you think applies, and tell us why. Cite legal authority OTHER than Wikipedia....

2) Explain to me how Gates can work a reversal----cite the subsection in DADT. (Note, the link you cited indicates he took his authority under DADT and refined the guidelines somewhat---so show us the part where he can do more....)


Look...I'm on your side. I'm an attorney. The briefest scan of my posts on Prop 8 would indicate to you that I am an ally.

In other words, if you can't make a reasonable case to me, it might explain why no argument has carried in Federal Court......

[dsc]

62. Are you seriously suggesting that stop loss doesn't exist

that I and wikilaw are making this up? Stop loss has been enough in the news that there was a movie based on it in 2008. Here is a link to a study by military law experts.

http://www.palmcenter.org/press/dadt/releases/New+Study+Says+Obama+Can+Halt+Gay+Discharges+With+Executive+Order

It is a pdf so I can't quote and will admit I haven't read it.

[msanthrope]

64. I am asking you to provide legal authority for your assertions....

Not wikipedia.

Tell me what statute you think applies, and why???

As for the Palm report....did you read this part???

"2) Legislative action is still required to permanently remove “don’t ask, don’t tell.”

Since MREA was first introduced in 2005, it has remained a stand-alone, unicameral bill.
Passage of the bill would be the best way to permanently eliminate “don’t ask, don’t tell” for the following reasons: First, since the current policy is based on a statute passed by Congress, its permanent elimination will require legislative or judicial action. Second, the legislation as currently written would establish a uniform code of conduct across the military for all service members, gay and straight, without regard to sexual orientation.

Evidence from foreign militaries indicates that this is one of the most important steps for the successful transition to a policy of inclusion. Finally, articulating the new policy in a federal statute will give the policy the imprimatur of broad public support and will create a clear set of standards and policies for service members and commanding officers. As stated in #1, above, pushing MREA through Congress may best be done after an
executive order first halts discharges for homosexual conduct."

So the Palm Report recognizes that the only permanent repeal is coming from Congress....

As for a temporary EO, do you understand how that could sink the repeal permanently?

Now, how long do you think it would take the DC Circuit to issue a TRO brought by Republican members of Congress as to an EO....and then the issue gets to Fat Tony and SCOTUS and gets shredded because it's coming from a Presidential power grab....not Congressional action.

You want something bulletproof???? You get a Congressional repeal.

[dsc]

67. I don't know the number of stop loss

but stop loss can be used this way, it is a very broad power that Congress already gave him. Did Congress mean for it to be used that way, well no, but the President isn't limited to Congress' intentions. I know it wouldn't be totally permanent but it should be noted that clearly they seem to be willing to use executive power to impliment this anyway. Congress, at Obama's insistance, is only passing a repeal of DADT not a legal right for gays to serve. The actual right to serve is apparently going to come from executive power.

[msanthrope]

72. Now you've got the order correctly.....

If Congress can repeal DADT, then Obama can issue an EO, like Truman did.

In that order, BOTH branches have acted constitutionally, within the scope of their powers. This is the best chance of judicial deference.

We want this passing, right??? Well, it's gotta stay passed.

[laughingliberal]

84. Perhaps you could catch a rerun of Rachel. One of her guests spoke to this tonight. nt

[msanthrope]

90. Fantastic. That's totally what Fehrenbach's lawyers should cite to a court.

Some dude on Rachael Maddow.

Jeebus. I'd love to read that Table of Authorities......

[laughingliberal]

93. If you had wanted the legal explanation, I assume you would have watched the program

It appears your intent, though, is to dog people around with your incessant questioning and defend the President's reticence to act. I'm not playing anymore. The information is out there. You could find it if you wanted it but I don't believe you do.

[msanthrope]

95. Why don't you paraphrase it???? Do you remember it??? n/t

[msanthrope]

96. Why don't you paraphrase it???? Do you remember it??? n/t

[laughingliberal]

97. I've said what I had to say about it. It was known Rachel would be doing an entire program on this.

It appears the subject did not interest you enough and it's not my job to handfeed it to you.

[msanthrope]

103. You know, Bill O'Reilly, on Leno, said Obama should issue an order, too.

I totally think that should be included in any appeal....

I loves me some Maddow, but generally, when one cites pundits as your legal authority....one has lost.

[dsc]

120. she said a guest said, not rachel said, btw the guest was a lawyer

[msanthrope]

127. The 'lawyer' isn't asking for an Executive Order, either. Neither did Fehrenbach.

Fehrenbach's lawyer is asking for an application of Witt.

Which is totally different....

In fact, when directly asked, Fehrenbach himself cited the stance of the SLDN, which eviscerates the idea of an EO.



http://www.msnbc.msn.com/id/26315908/ns/msnbc_tv-rachel_maddow_show/#38668562

[JonLP24]

107. Yes that is what it says

It takes an act of Congress and the President's pen to change the law so a discharge never happens. But in times like these where we are at war he can halt discharges.

[msanthrope]

139. Explain how.

As above, I've noted that the problem of using stop-loss is precisely what the Serviceperson's Legal Defense fund has noted....

'homosexuality' is a specific exemption to stop-loss.

So how you get around that and survive judicial challenge under Youngstown and progeny?

You know, if the SLDN couldn't come up with a way--and the Palm report didn't, either....

[laughingliberal]

81. And speak slowly...eom

[Javaman]

118. Since you choose to argue rather than read a link that was provided for you...

I will show you the responce to your oringal inquiry here...

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=8928545&mesg_id=8931419

And the link provided...

http://www.palmcenter.org/press/dadt/releases/New+Study+Says+Obama+Can+Halt+Gay+Discharges+With+Executive+Order

[Realityhack]

128. That was a good synomsis. thanks. n/t

[msanthrope]

143. Again, you haven't addressed the central flaw of the report you cite....

see post # 137, above....

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=8928545&mesg_id=8934190

I get what you are citing, but you haven't explained how you use stop loss in this instance, when 'homosexuality' is a specific carve out....and survive under Youngstown and progeny....

[pinboy3niner]

32. The destruction of a lot of careers could have been prevented...

...very easily by a simple moratorium on enforcement.

[DeSwiss]

33. Quite a bit, yes. And this one -- without a doubt. He can end it with the stroke of a pen. n/t

[asdjrocky]

61. This is.

He could stop it with a stroke of a pen.

[madinmaryland]

83. NO DAMMIT. It is the Clenis' fault.

Where do you think DADT came from.

:shrug:

[donheld]

99. Nothing is Obama's fault

ever.

[QC]

115. Obama is only responsible for the good things that happen on his watch.

The bad stuff is always someone else's fault.

[Bandit]

117. He said Obama looked him right in the eyes and said "this will not stand"

Does Obama have any credibility left at all? I think he is just a bold faced LIAR

[madfloridian]

2. He will lose his retirement. This is just ridiculous.

The president should intervene.

But he won't.

[Bluebear]

15. The President does not care about these people.

[tsuki]

108. Rachel nailed it. Doing the right thing is too hard. nt

[uponit7771]

6. Obama also killed Bambi, rolleyes:@ConstantObamaBlamers

[nadinbrzezinski]

9. So you believe this is right?

Just answer the fucking question, because Obama could fulfill that CAMPAIGN PROMISE with a stroke of a pen. It is called an executive order. They cover those in Civics Class.

[PufPuf23]

30. Right on Nadia!

I have no stake in this as I am not military (except ROTC 1966-68) and heterosexual.

Maybe because of the where I have spent most my time and friendships, the stroke of the pen followed by rigorous legislative effort (I am certain there are bills already written as this is how the world operates) is the simple answer. Otherwise DADT is a nice wedge issue to regurgitate.

[nadinbrzezinski]

36. My stake is just the unfairness of the whole thing

he is six months from retirement I believe...

He will lose all that.

[RandomThoughts]

14. Thats funny, but not fair.

Jane Doe a deer, a female deer.

Maybe it is for all those people ignored out there, what an interesting thought that is.

[DeSwiss]

31. So you like living with blinders on, eh????

Those 20%er Republicans of Bush's liked them too!

[madfloridian]

57. If you think this is funny, then that is quite sad.

There is no excuse for allowing this kind of discrimination to continue.

You are ridiculing someone who is losing their pension because our party does not care enough to stop the procedure.

[QC]

7. But he doesn't have a magic wand!

:cry:

[Bluebear]

12. You think everything is Obama's fault!

http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=389&topic_id=8928545&mesg_id=8928560

:cry:

[QC]

20. You never really loved him!

:cry:

√ Chess

√ Poutrage

√ Pony

Hmmm, did I forget any apologist clichés?

[Bluebear]

23. Fehrenbach needs drug testing!!

:cry:

[QC]

24. We don't deserve him!

I knew I had forgotten an especially nauseating one!

[Bluebear]

26. How do you think you are making Obama feel???

http://www.democraticunderground.com/discuss/duboard.php?az=show_topic&forum=389&topic_id=8921844

[QC]

27. He's crying right now and it's your fault!

:cry:

[moksha]

114. That one is my favorite one.

Only the ones who have found religion in Obama spout it.

[dflprincess]

68. You forgot

"You'd rather have Palin be president!"

[QC]

73. Of course! How could anyone forget that one,

given how it's posted hundreds of times every day.

[LostinVA]

109. PM me

The authoor.

[nadinbrzezinski]

13. But he has a pen, executive order

remember those?

[msanthrope]

48. As I asked above, can you explain how an EO overrides a statute? n/t

[nadinbrzezinski]

49. I turn to you to 1948

the separation of the force into black regiments and white regiments was statue too.

I know many folks have a problem getting this, but a pen could put a stop to a lot of this... followed by legislation of course

The country is ready.

I don't think the POTUS is and that is a sad statement.

[msanthrope]

52. I turn you to fact---in 1948, no act of Congress needed to be overturned.

There was no statute mandating segregation in the military....

so an EO sufficed.

Now, kindly explain to me just how a law of the United States, passed by Congress, gets overridden by an EO.

[nadinbrzezinski]

56. Ok here is a fact

an EO is a TEMPORARY solution. How about AN EO right now and repeal later?

I don't think they want to go beyond words.

So here is the thing... you either realize that, or you don't.

But RIGHT NOW they could stop this with the stroke of a pen.

[msanthrope]

60. Let me ask you something......and I'm serious about it.

Have you considered that an EO issued with the intent to override Congressional authority, is grounds for impeachment?

I'm being totally fucking serious.

Further, even if it doesn't get to that point, have you considered that it will take the DC Circuit all of 10 minutes to issue a TRO?????

And then it goes to Fat Tony, who will fuck that lawsuit, and issue a blistering anti-administration, anti-DADT ruling.

I'm telling you, as an attorney, that if you want DADT repealed in bulletproof manner, you'd best get Congress to repeal....and NOT rely on a Presidential power grab that SCOTUS will smack down in a New York minute.

And I'm on your side....

[nadinbrzezinski]

63. Funny them lawyers at the RM show

seemed to not fully agree with you.

As is, EO overreach... what happened over the last eight years of the Bush Administration?

Oh I forgot, rules only apply to democrats.

[msanthrope]

65. So the President, who is a constitutional lawyer, should listen

to pundits on the RM show???? Perhaps they should write him a legal note.

I agree with you....the Bush Admin was shameless....

And yes....do you remember the administration before???? Impeachment over a blowjob?

I want this fucker bulletproof, so Fat Tony chokes on it, and we have a chance with Kennedy.

You do that with PROPER exercise of the branch of government that put DADT in....you get the repeal.

[nadinbrzezinski]

66. And I have to conclude that all we heard on the campaign trail

was all sound and fury signifying nothing regarding this.

And until I SEE REAL CHANGE, that is my opinion.

[msanthrope]

69. Has Obama left office???

Was everything supposed to get done in 6 months????

Yeah, it's a slow struggle. But it's gonna happen.

[nadinbrzezinski]

71. Will see how many other lives are ruined

realize that the Colonel's case should have come to a screeching halt... it hasn't

So all that sound and fury signifying nothing stands.

[Bluebear]

75. Look, Fehrenbach does not have time for the "slow struggle". And his 18 year career is in danger.

Obama could stop his discharge with one order while Congress worked on DADT. That's all the President has to do to stop the wholesale wreckage of careers and lives here.

[msanthrope]

86. Explain to me how that works--'cause no other poster has.

Explain to me just what the EO would say--and if you are going to tell me 'stop-loss' tell me just how an EO would work past the stautory limitations placed on stop loss.

Tell me just how an EO invoking stop-loss would invalidate the part of the statute for stop loss that specifically states that homosexual conduct is a carve out???

See page 13, ftn 29 for the carve out....tell me how the Serviceman's Legal Defense Fund is wrong.

http://docs.google.com/viewer?a=v&q=cache:TM4dnTC3GlsJ:www.dtic.mil/cgi-bin/GetTRDoc%3FAD%3DADA484814%26Location%3DU2%26doc%3DGetTRDoc.pdf+sharon+alexander+stop-loss+sldf&hl=en&gl=us&pid=bl&srcid=ADGEEShrchypZpLv7oYJHI3vDkcKfic2b31SPrjl7YmnuMEgHYLs2yIvj9N290k21ZuET6J3EzK5hFWzwne5NukSj00rsE5NTbGqErSIwVEeQSy7dd0qlrxr8kIsqWdMIYMCDu0kyUvx&sig=AHIEtbSpQe5daCVFF6hAVbhzgwEmLeK50w


Edited to add---I'm on your side with this--if an EO would do it, great. I'd just love someone to explain to me, how?

[Bluebear]

92. 10 U.S.C. § 12305

How to End "Don't Ask, Don't Tell"
A Roadmap of Political, Legal, Regulatory, and Organizational Steps to Equal Treatment


http://www.palmcenter.org/files/active/0/Executive%20Order%20on%20Gay%20Troops%20-%20final.pdf

[msanthrope]

98. Read this from the source you gave---

"2) Legislative action is still required to permanently remove “don’t ask, don’t tell.”

Since MREA was first introduced in 2005, it has remained a stand-alone, unicameral bill.
Passage of the bill would be the best way to permanently eliminate “don’t ask, don’t tell” for the following reasons: First, since the current policy is based on a statute passed by Congress, its permanent elimination will require legislative or judicial action. Second, the legislation as currently written would establish a uniform code of conduct across the military for all service members, gay and straight, without regard to sexual orientation.Evidence from foreign militaries indicates that this is one of the most important steps for the successful transition to a policy of inclusion. Finally, articulating the new policy in a federal statute will give the policy the imprimatur of broad public support and will create a clear set of standards and policies for service members and commanding officers. As stated in #1, above, pushing MREA through Congress may best be done after an executive order first halts discharges for homosexual conduct."

********

So, I get you that you want the President to issue an EO--but how does stop loss cover 'homosexuality' when it has been carved from the statute (along with pregnancy and other conditions)---how does an EO override constitutional authority and survive a TRO?

Or, are you seriously suggesting that you want the President of the United States to declare a national emergency, suspend provisions of a valid statute, and issue an EO that suits your agenda????

You want to suspend 10 USC ss12305, et seq....

Cause I think we should not suspend portions of the US Code just because we think it might be a shortcut to what we want....

I thought that under Bush, I think it under Obama....

[LostinVA]

112. "issue an EO that suits your agenda????"

Oh yes, you are REALLY on "our side."

:rofl:

[msanthrope]

146. I don't agree with the agenda issuing EO's to overturn statutes.

You and I want the same outcome--we disagree on how to get there.

[LostinVA]

110. It's been posted here literally hundreds of times

[LostinVA]

111. It's been posted here literally hundreds of times

[dflprincess]

70. The president, who was a professor of Constitutional law,

has no problem ignoring habeas corpus, FISA, the Patriot Act, extraordinary rendition, killing American citizens without trial and other things that would probably cause James Madison to turn to drink.

[msanthrope]

76. So you're okay with extrodinary reaches of Presidential

power, as long as you approve of the agenda?

If I truly thought that an EO would solve the problem, I'd back it. It won't. It will be much tougher, and I'm glad President Obama isn't taking the easy way out...

After all, let's say he did an EO. And a TRO gets issued.

What then?

Shall we give the Congress yet another excuse?

[dflprincess]

89. A stop loss order would not be an "extraordinary reach"

And you're the one who held him up as a paragon of Constitutional expertise when he apparently had his fingers crossed when he swore to "preserve, protect & defend" the Constitution.

As for Obama not taking the easy way out? Yeah, he is.

[msanthrope]

102. Suspension of a statute, citing 'national emergency' is not extrodinary?

Like, let's say habeas corpus???

But, suspending statutes is okay if you like the result????

Please understand what it is you want--you want the President of the United States to suspend portions of a valid statute as a temporary measure to achieve your political agenda......and FYI, I'm not talking about suspending DADT. He'd have to suspend statutes like 10 USC ss12305, and sections thereto, which govern the calling of troops, in order to suspend the 'homosexuality' carve out...


I thought that a shitty idea under Bush, I think it's shitty under Obama....be consistent.

[dsc]

123. No it isn't

Stop loss exists. It is a crystal clear law. It states, in no uncertain terms, that the President has the unilateral right to stop people from leaving the military during war time. No qualification whatsoever is put on this power.

[msanthrope]

124. Okay--you've failed to account for this very important fact.

1) As cited previously, there are carve outs to 'standard' stop-loss. 10 exemptions. things like if you are gay, or pregnant, or being prosecuted.

2) As cited previously, in order to suspend stop-loss exemptions, the President would have to do a legal jujitsu----see, he could not just issue a 'standard' stop-loss.

He would have to...

a) declare a 'national emergency', which would then then trigger the President's ability to
b) suspend stop loss exemptions, and then,
c) issue an EO--a new stop loss order.
d) survive judicial challenge.

Now, PLEASE answer me....

1) What's the national emergency?
2) Tell me how you survive judicial challenge.

[dsc]

130. throwing out arabic translators when we are at war with arabic speakers

yea I think that is an emergency. Throwing out the guy who was given the job of defending DC airspace on 9/11 that is an emergency. Oh, and as for the judical challenge, the military is given a huge, wide berth.

[msanthrope]

133. I don;t dispute the wrongness.....

But tell me, seriously, using actual legal doctrine, how you would make the case for this?

It's not enough to decry the wrongness. You have to find something that works.

Explain to me how an Executive Order, overturning a Congressional statute gains judicial deference under the Youngstown and progeny framework????


What career military officer is issuing this???? Does anyone seriously think SCOTUS is gonna merely defer to this CIC?

Okay, if you do, then tell me the judicial precedent you are relying on?

[dsc]

140. If throwing out half your arabic translators isn't an emergency I don't know what is

[Realityhack]

132. IIRC the 'national emergency' is alreay leagally quite clear...

national guard serving on active duty.

Did I miss something or are you arguing over made up problems?

[msanthrope]

141. What?

What is the 'national emergency' that triggers the suspension of statute?

Because, right now, the President can and does issue stop-losses under statute....

but understand he would have to suspend the stoploss statute because 'homosexuality' is a specific carve out NOT subject to stop loss---

So how does that happen, for what reason, and how does it survive judicial challenge...

Hey, I'm actually on your side. Just explain how it works, using a legal argument.

[Realityhack]

145. IANAL

But it seems to me that changing the stop loss wording so there were fewer exemptions would be legally permitted under the law allowing the stop loss in the first place.

[msanthrope]

147. I am. n/t

[Realityhack]

129. See #45

[kenny blankenship]

11. Blue Falcon strikes again!

keeping that "fierce advocacy" powder dry for use on another occasion, no doubt.

[Poll_Blind]

16. Nobody's tied Obama's hands on this one. Remember the "Beer Summit"?

Here's a little refresher. Obama can get personally involved in any issue if he wants to. He just doesn't want to on this one.

Without what I feel is any embellishment, the above paragraph is self-evident and uncontroversial.

PB

[democrank]

17. Imagine....

A Lt. Colonel losing his retirement and getting booted from the military because of his sexual orientation. It is so wrong.

[Bluebear]

18. Imagine a Democratic President & Congress letting this happen. nt

[xchrom]

19. I imagine that if this were a race at least two posters

In this thread would have a different take.

So I'm guess they are homophobic.
Well - guess -- is too mild.

[VMI Dem]

22. You are correct.

[Bluebear]

38. +

[rusty fender]

121. They could be 'Obama has no power' people, or 'Obama can do

no wrong' people. It is amazing to me, that, as POTUS, Obama is so helpless, on so many fronts!

[dsc]

25. the most galling thing here is that this is the kind of case which

supposedly wasn't going to happen anymore.

[Parker CA]

28. This is so completely fucked up. nt.

[FreeState]

29. + 1 n/t

[Tierra_y_Libertad]

34. I'm sure Obama will have Gibbs tell Fehrenbach how grateful he should be.

[Jamastiene]

35. You know God kills a kitten every time you point out Obama is not doing

what he promised he would do, don't you?

HATER!!!!111!!1ELEVEN!

K&R, btw. :hi:

[Bluebear]

37. And it's all our fault!!

:cry:

[bvar22]

39. If the Democrats were in power, this would never happen!!!

My Bad.

[Bluebear]

40. So, everyone give a lot more money to the DNC!

:silly:

[jefferson_dem]

41. I would tell the OP that Maddow is supposed to have an exclusive on this story tonight.

But I think he has me on ignore...for some stupid reason. Drats.

[dsc]

42. I will repeat it for you Maddow will have an exclusive on it tonight

[Parker CA]

43. I hear Maddow has an exclusive on this tonight! Glad I read this so I'll turn on tv machine. nt

[jefferson_dem]

44. ...

:thumbsup:

[Major Hogwash]

74. This was on Rachel's program tonight!!! Fehrenbach was really good on tv tonight!!!

This Air Force jet pilot is a Lt Colonel and he is getting railroaded!!
He's an honest to gawd hero to a lot of people.

They're trying to ruin him, take away his career.
We've got to stop these witch hunts!!!

This is bullshit!!!

[amborin]

46. K&R

[Poboy]

53. k&r

[havocmom]

55. no hope for the change we worked for

:banghead:

[Starry Messenger]

58. This makes me sick.

Too bad stories like this crush the enthusiasm of Dems. Lt. Col better keep that in mind, lest he be thought of as whiny by the "base".

[ncteechur]

77. DADT is the law. A bad law? certainly. but it is the law. it should be repealed or

overturned. But it is the law.

I don't believe the president can overturn a law by executive order.

[Bluebear]

79. He doesn't have to "overturn the law". All he has to do is stop the discharges and he can. But won't

[FreeState]

82. He cant overturn the law - but he damn well could temperarely use his powers to issue a stop loss

Until congress acts.

[Bluebear]

85. These posters all know that. It's the same apologist mumbo-jumbo we've heard all along.

Meanwhile, discharges...lives and careers ruined.

[FreeState]

88. These posters are showing their true colors then n/t

[laughingliberal]

100. Here's a nice report detailing the authorities under which the President could act now:

There are three legal bases to the president’s authority, the report says. 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. According to the study, these provisions mean that the Pentagon, not Congress, has the “authority to devise and implement the procedures under which those findings may be made.”

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.”

http://www.palmcenter.org/press/dadt/releases/New+Study+Says+Obama+Can+Halt+Gay+Discharges+With+Executive+Order

[msanthrope]

104. The lead author of the study you cite supports Obama's repeal framework.

This was after the repeal language was proposed in Congress--

"Aaron Belkin, the director of the Palm Center, said via e-mail on Monday night, ''This policy has been incredibly difficult to dismantle, and only Presidential leadership could rip it down. That's what we got today.''

The Palm Center has been a leading source of academic research on the policy over the past decade, and Belkin, who has been skeptical of the chances of repeal this year, said, ''The White House showed real leadership today in dismantling 'Don't Ask, Don't Tell.'''

http://www.metroweekly.com/news/?ak=5227

Note, this support came NOT after an EO, but after a legislative amendment.


Now, you've cited the Palm Center report--and you haven't answered the questions I've kept posing to you:

1) Explain to me how your EO survives a TRO in the DC Circuit, and review by SCOTUS. (Use the Youngstown framework, and explain how, pursuant to that rubric, this is given deference.)

2) Explain to me how you justify a 'national emergency' when you have a troop-drawdown going on. What, exactly, is the 'national emergency'--remember, this must be factual, not political.

3) Finally, explain what your reaction would have been had Bush suspended the exemptions in order to keep more soldiers in Iraq. I'm sure all of DU would have backed the Bush admin suspending the laws of Congress and declaring a 'national emergency' in order to keep more soldiers--soldiers in retirement, pregnant ones, etc.

[laughingliberal]

119. We have just had a troop buildup in Afghanistan and we're leaving 50,000 in Iraq

We still have some troops undergoing multiple deployments. Why would be discharging some for this discriminatory policy while we're still requiring multiple deployments to others?

And you ignore the point that the President can, by executive order, suspend discharges and investigations for DADT pending the repeal. You are ignoring this:

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. According to the study, these provisions mean that the Pentagon, not Congress, has the “authority to devise and implement the procedures under which those findings may be made.”

http://www.palmcenter.org/press/dadt/releases/New+Study+Says+Obama+Can+Halt+Gay+Discharges+With+Executive+Order

The President is the Commander in Chief. He could change the procedures by executive order. There have been many military people who have pointed out the President's authority to act in a number of ways to stop the discharges pending Congressional action.


Stop loss was common under Bush. AIR, we all raised a big ruckus when he discharged the Arabic language translators for being gay at a time when we had serious shortages of Arabic language translators. Yes, I remember it clearly. People were outraged he didn't intervene to allow them to remain in the military.

I have already stated I am done with your incessant questioning. It is obvious you don't want to hold the President accountable for any of this. Most military people I have listened to and read on this subject believe the President could act including those on Rachel Maddow's show last night which you did not care enough to watch and now want to harangue on people who did care enough to watch it. Let's just agree that nothing will change your mind about this and be done with it and you can believe whatever you want to justify the President's reticence.

[msanthrope]

122. I'm not ignoring the fact that the President 'can'. I'm saying it's stupid.

Look, the President of the United States can make any EO he wants.

But what you, and no single poster on this thread have managed to do is explain how it would survive a judicial challenge. That's something the Palm Center didn't dare address.

It's also why the study's lead author NOW supports legislative repeal as the initial vehicle of reform.



Oh--and please....reports co-authored by law professors, psychologists, and political science teachers, none of whom have ever had a military practice, aren't authoritative on this issue.

There's a reason why the Serviceman's Legal Defense Fund eviscerated this 'legal stratgery.'


Rather than tilting at windmills, find a legal strategy that works---have Congress repeal its own mess, and demand judicial deference. Which is what is happening---and which is what the lead author of your report now supports.

[laughingliberal]

134. As I said, you are very invested in your POV and nothing anyone says is likely to change it.

With the Pentagon given the authority to determine how findings are determined or even IF they conduct the investigations, I don't see how an order from the CIC would be subject to judicial review. They didn't 'dare' address it because it's not relevant.

Whether the lead author now supports repeal by legislation or not is moot. It does not change the findings. He may well believe it's a better idea, now, but it does not change the facts.

There were experts on Rachel's show last night, which we've established you could not be bothered to watch, who have had military practice. But watching it and hearing them doesn't fit your strategy to just keep defending the President's reticence to act.

Calling action by the President to stand up for civil rights 'stupid' pretty much tells me everything I need to know.

Your mind is made up as is mine. This is fruitless.

[msanthrope]

144. You don't see how an Executive Order would be subject to judicial review????

Somewhere, a constitutional law professor is weeping softly.

You might try reading the case on which the entire theory of modern Presidential power is based....

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=343&invol=579

[laughingliberal]

152. I don't see how arguing with you is getting me anywhere. You might trry finding some video of

of Rachels show where there were people (yes, people with experience in military law) who explained several scenarios under which the President could (if he wanted to) act. I am of the opinion you have avoided this because you did not want your unquestioning defense of the President's reticence to act challenged and prefer to keep up your harangues against other posters here.

Once you have located some video and heard what they had to say, I suggest you write and let them know why they are wrong. I'm sure they'd be grateful for your insight.

Bye, now.

[msanthrope]

153. Upthread,(#127) I indicated that not only had I watched it, but that they supported my position.

I watched the segment with Fehrenbach and his lawyer.

The lawyer didn't want an EO. He wanted application of Witt. Which I don't disagree with.


Fehrenbach, when asked about an EO, cited the SLDN's position that only a repeal would be permanent....he didn't ask for an EO.

So, did you read Youngstown? Do you now understand how judicial review applies to EOs?

[laughingliberal]

154. We already know you don't want an EO.

I think we already know you don't want an EO. I think it's clear all you want is to defend the President's lack of action on this.

Everybody knows only repeal would be permanent. I see nothing wrong with suspending the investigations or discharges pending the review the military is doing and action by Congress and I would like to see the President do that.


"The lawyer didn't want an EO. He wanted application of Witt. Which I don't disagree with."

I do agree with him and agree with anything that can stop these discharges while we wait for repeal and do not and will not agree with you that nothing can be done until Congress acts. Contact the lawyer and enlighten him with all the reasons you disagree with him. Obviously, he's just waiting for some brilliant person such as yourself to set him straight. Perhaps your harangue will persuade him.

[msanthrope]

158. Actually, Fehrenbach's lawyer already agrees with me....

that's why he isn't asking for an EO.

and here's a point about the EO that you may not have considered.

If there is litigation over the EO, (and there will be!) then Congress will toll any and all action on repeal. That's what they are supposed to do when there's litigation pending.

So an EO is ill-advised, on many levels.

[Tesha]

155. You keep assuming a full-frontal Executive assault on DADT.

And you're right; such an assault would quickly fail.

But everyone else here keeps telling you that Obama
could simply order the military to *STOP FINDING*
homosexuals. And even if they are still occasionally
"found", the military could certainly move arbitrarily
slowly on discharging homosexual; a discharge requires
a lot of paperwork and it's probably got to all be
filled out in triplicate, checked and rechecked; could
take a long time! I don't think you'll find any
controlling legal authority that prevents either of
those actions, no matter how hard you look.

But Obama really doesn't want to do anything positive
about this issue so he won't extend himself to take
either of those steps either.

Tesha

[msanthrope]

159. Thank you for agreeing with me on the EO. To address your

other points...

1) Gates already changed the military regulations to reflect what you asked for. A poster, who does not agree with me, upthread, gave this link...

A 'More Humane' Don't Ask, Don't Tell? Military Adjusts Approach to Outing Gays
Pentagon Announces New Measures to Soften Policy on Military Gays

http://abcnews.go.com/Politics/gays-military-pentagon-announce-humane-approach/story?id=10194160

That, he is allowed to do under DADT, because DADT allows him some latitude in setting regulations...essentially, Gates can control much of the "Don't Ask" portion of the regs.

ETA--Gates cannot control assholes who want to be sticklers. Only repeal will remove the power of those who WANT to persecute.


2) Gates can't control the "Don't Tell" part. Once the cat is out of the bag, the military doesn't get the option of running around with their fingers in their ears yelling "LALALALALALALA".

ONLY repeal will change that. Why? Because under DADT, 'homosexuality' is considered a unit cohesion problem. Those are taken seriously.


3) The rest of your approach creates due process problems. Sure, there's lots of paperwork. With timelines. You can only 'slow it' so much.
And Obama can't order anyone to be 'less efficient.'

(And then there's the problem that repeal might not be retroactive. Issue for another day.)


4) Frehrenbach, but for publicly outing himself*** would have been okay. The military doesn't have much of a choice when there's a public declaration.


***Yes, I understand and sympathize with the fact that this wasn't an outing that was necessarily made freely. I understand why he had to do it.

[Shining Jack]

160. Maybe you should STFU...

...before Righthaven LLC sues your ass off for Copyright Infringement.Look at all
the paragraph excerpts that you pasted in this thread ! :evilgrin:

[msanthrope]

161. It is a sad day when citation carries the risk of

litigation......

May the gods of Internet Vengeance get them---

[Catherina]

101. This is worse than disappointing. Everyday I feel worse about supporting Obama

during the primaries and sending him so much money.

[Vinca]

113. It's outrageous this decorated military person is being tossed overboard

for something that is nobody's business but his. Think of the money this country has invested in the man if nothing else. I can't think of one reason the POTUS shouldn't step in and stop discharges until the matter is settled.

[QC]

116. Yes, and many people on this thread, and in this forum, think that the real tragedy here

is not that a good man's career is being destroyed, or that he will lose the pension he has worked so long for, or that our defense forces are losing such a highly qualified soldier, but that...

get this...

people on a message board are saying uncomplimentary things about a politician to which they feel a bizarrely intense personal attachment.

Amazing? Sadly, no. More like typical.

[laughingliberal]

135. +10,000 nt

[Bluebear]

142. :nodding intensely:

[QC]

156. It's mindboggling, isn't it,

to dismiss an injustice like this one for the sake of defending an elected official from being criticized on a message board by the powerless?

[Hell Hath No Fury]

125. I support Lt. Col. Victor Fehrenbach 100%.

He is an honorable man who is trying to force the governemnt to do the right thing -- too bad the same could not be said of President Obama. :(

It is outrageous. It is sickening. It cannot stand.

Thank you Rachel for keeping this topic visable. Thank you Lt. Col. for standing up and refusing to go quietly.

Now, DUers what the hell are we going to DO about this???

May I suggest contacting the White House and voicing your opinion on the Lt. Cols. plight and requesting an EO stopping the disharges?

WH Comments: 202-456-1111
WH Fax: [phone]

[BrklynLiberal]

126. Rachel's show about this entire matter was FANTASTIC!!!

IT was last night...Weds 8/11..if you missed it...find the video!!