In [url=]this article from 365 Gay, it says,
I would think that since Don’t Ask, Don’t Tell was passed by Congress (wasn’t it?) only Congress could change or eliminate the law. Certainly the Pentagon could put pressure on them, but it’s not really their decision. Right?
Sorry. Forgot to actually link it.
That’s correct. Specifically, it’s this law, Section 571 of the Defense Authorization Act of 1994:
http://dont.stanford.edu/regulations/pl103-60.pdf
However, if the Pentagon were to strongly come out for the repeal of the law, that would go a long way to getting it repealed. Also, the Pentagon (and lower level commands) decide how strictly they will enforce the law, so there’s some flexibility that way.
Here’s a non-pdf version.
While it’s true that the DoD can’t repeal the law, it can effectively ignore it, under this provision:
Rumsfeld could issue a blanket policy statement and stop all DADT discharges. Additionally, the Pentagon (I don’t know specifically who or what within the Pentagon) can issue a “stop-loss” order preventing any and all discharges. IIRC there is a general stop-loss in effect now for all personnel except those being discharged under DADT (but I could be wrong or that could have changed). During the first Gulf War a stop-loss was issued for homosexual servicemembers, done with the full knowledge on both sides that as soon as the war was over the discharges would proceed apace. Why a court hasn’t looked at that and decided that DADT, in addition to being a First Amendment violation, is completely irrational is beyond me, but that perhaps is fodder for a GD thread instead.
I think you’re reading the provision incorrectly. The exception can be made if
“the member engaged in conduct or made statements for the purpose of avoiding or terminating military service”
and
“separation of the member would not be in the best interest of the armed forces.”
In other words, the law is saying, “And, soldier, don’t go around saying you’re gay just because you want out of the army, because we’re on to your tricks.”. It’s sort of the Chevy Chase provision. (During the Vietnam War, Chase said he was gay so he wouldn’t be drafted).
I understand what it says. If Rumsfeld issued a determination stating:
"1) All declarations of homosexuality on the part of any service member shall be construed to have been made for the purpose of avoiding or terminating military service; and
do you think that such a determination would be invalid?
It wouldn’t be invalid, I don’t think. You might need to amend 32cfr41, though, first. Of course, it’s quite likely that if the Sec. Def. tried something like that, Congress would amend the law to tighten up that provision.
I don’t think so. The Dems wouldn’t support it and most Republicans would be wary going against the White House (DR doesn’t do anything w/o W’s support) on millitary matters. Of course DoD would have to argue that gays can’t serve because it hurts discipline, but since we’re at war (and military discipline is mort important than ever) gays are to import for national security to get rid of.