With Congress basking in the media afterglow of its vote last night on Don’t Ask Don’t Tell, Rob Neppell asks an inconvenient question about what exactly passed. Did this bill actually repeal DADT? Did it even repeal it if the Pentagon approves an end to the policy? A look at the legislative language makes it appear more that Congress simply punted the question back to the White House:
An amendment numbered 79 printed in House Report 111-498 to repeal Dont Ask Dont Tell only after: (1) receipt of the recommendations of the Pentagon’s Comprehensive Review Working Group on how to implement a repeal of DADT (due December 1, 2010) and (2) a certification by the Secretary of Defense, Chairman of the Joint Chiefs and President that repeal is first, consistent with military readiness, military effectiveness, unit cohesion & recruiting, and second, that the DoD has prepared the necessary policies and regulations to implement its repeal. It would also include a 60 day period after certification before the repeal took effect.
79. AN AMENDMENT TO BE OFFERED BY REPRESENTATIVE MURPHY, PATRICK OF PENNSYLVANIA OR HIS DESIGNEE, DEBATABLE FOR 10 MINUTES
At the end of subtitle D of title V, add the following new section:
SEC. 5XX. DEPARTMENT OF DEFENSE POLICY CONCERNING HOMOSEXUALITY IN THE ARMED FORCES.
(a) Comprehensive Review on the Implementation of a Repeal of 10 U.S.C. 654-
(1) IN GENERAL- On March 2, 2010, the Secretary of Defense issued a memorandum directing the Comprehensive Review on the Implementation of a Repeal of 10 U.S.C. 654 (section 654 of title 10, United States Code).
(2) OBJECTIVES AND SCOPE OF REVIEW- The Terms of Reference accompanying the Secretary’s memorandum established the following objectives and scope of the ordered review:
(A) Determine any impacts to military readiness, military effectiveness and unit cohesion, recruiting/retention, and family readiness that may result from repeal of the law and recommend any actions that should be taken in light of such impacts.
(B) Determine leadership, guidance, and training on standards of conduct and new policies.
(C) Determine appropriate changes to existing policies and regulations, including but not limited to issues regarding personnel management, leadership and training, facilities, investigations, and benefits.
(D) Recommend appropriate changes (if any) to the Uniform Code of Military Justice.
(E) Monitor and evaluate existing legislative proposals to repeal 10 U.S.C. 654 and proposals that may be introduced in the Congress during the period of the review.
(F) Assure appropriate ways to monitor the workforce climate and military effectiveness that support successful follow-through on implementation.
(G) Evaluate the issues raised in ongoing litigation involving 10 U.S.C. 654.
(b) Effective Date- The amendments made by subsection (f) shall take effect 60 days after the date on which the last of the following occurs:
(1) The Secretary of Defense has received the report required by the memorandum of the Secretary referred to in subsection (a).
(2) The President transmits to the congressional defense 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:
(A) That the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff have considered the recommendations contained in the report and the report’s proposed plan of action.
(B) That the Department of Defense has prepared the necessary policies and regulations to exercise the discretion provided by the amendments made by subsection (f).
(C) That the implementation of necessary policies and regulations pursuant to the discretion provided by the amendments made by subsection (f) is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.
(c) No Immediate Effect on Current Policy- Section 654 of title 10, United States Code, shall remain in effect until such time that all of the requirements and certifications required by subsection (b) are met. If these requirements and certifications are not met, section 654 of title 10, United States Code, shall remain in effect.
(d) Benefits- Nothing in this section, or the amendments made by this section, shall be construed to require the furnishing of benefits in violation of section 7 of title 1, United States Code (relating to the definitions of `marriage’ and `spouse’ and referred to as the `Defense of Marriage Act’).
(e) No Private Cause of Action- Nothing in this section, or the amendments made by this section, shall be construed to create a private cause of action.
(f) Treatment of 1993 Policy-
(1) TITLE 10- Upon the effective date established by subsection (b), chapter 37 of title 10, United States Code, is amended–
(A) by striking section 654; and
(B) in the table of sections at the beginning of such chapter, by striking the item relating to section 654.
(2) CONFORMING AMENDMENT- Upon the effective date established by subsection (b), section 571 of the National Defense Authorization Act for Fiscal Year 1994 (10 U.S.C. 654 note) is amended by striking subsections (b), (c), and (d).
If that’s not a complete punt, it’s at least a drop-kick back to the White House. This bill doesn’t take effect at all unless the President certifies in writing that he wants the change to occur and that the military has prepared for it to occur. Barack Obama had dodged the question of DADT for the most part, offering public support but claiming that he wanted Congress to act instead of ordering the change himself. Now Congress has handed the issue back to Obama — or possibly even another President farther down the line — by forcing him to pull the trigger instead of Congress.
Some might wonder whether Congress had much choice. Of course they did; they could have waited for the Pentagon to publish its study in December and review it themselves at that point. Instead of including all of the folderol seen in Section 5xx (a) (2), at that point Congress could have then taken the action themselves by passing a law that executed subsection (f) immediately, or at some fixed date, without presidential action as a prerequisite. Obama would still have to have signed the bill to make it law, but he wouldn’t have had to provide Congress with a separate written request.
I support an end to DADT, but this really isn’t quite it, and Congress certainly knows it. They’re going to make Obama end it and take the heat.