DADT heads for judicial and Congressional debate; Maj. Witt heads back to Air Force

by on November 24, 2010  •  In Congress

The Senate Armed Services Committee will hold hearings next Thursday and Friday on the forthcoming Pentagon report about the feasibility of DADT repeal. The hearings are presumably intended to provide cover for senators who have stated their reluctance to vote in favor of repeal without first being able to read and discuss the report, set to be released on Tuesday. The timing of the hearings – as soon as possible after the release of the report, but already deep into a short lame duck session – seems to virtually guarantee that there will be a nailbitingly close finish to the effort to eliminate the DADT policy before this session of Congress ends.

On Dec. 2, the Committee will hear testimony from Secretary of Defense Gates and Chairman of the Joint Chiefs of Staff Admiral Mullen, as well as the co-chairs of the Pentagon working group: Jeh Johnson, the Pentagon’s general counsel, and General Carter Ham, commander of U.S. Army Europe. 

On Dec. 3, witnesses will include Vice-Chair of the Joint Chiefs of Staff Marine Corps Gen. James Cartwright and all of the service chiefs: Army Chief of Staff Gen. George W. Casey; Chief of Naval Operations Adm. Gary Roughead; Marine Corps Gen. James Amos; and Air Force Chief of Staff General Norton Schwartz.

Meanwhile in the federal judiciary, the Justice Department filed a notice of appeal in Witt v. Air Force, meaning that the Ninth Circuit is on track to decide both a facial (the Log Cabin Republicans case) and an as-applied (Witt) challenge to the DADT statute. Unlike in the LCR case, however, DoJ did not request a stay of the injunction ordering that Major Witt be reinstated.

Not seeking a stay was a smart move for DoJ, since they probably would have been rebuffed by the court, another humiliation in a case that has been a world of pain for them. Allowing her to return to active duty, though, certainly undercuts the argument that Justice Department lawyers relied on at trial, that her presence harms the force. This is a case they can't win for losing.

UPDATE – Turns out DoJ may still attempt to stop Major Witt from rejoining her unit. She has to satisfy re-entry qualifications before actually returning to duty, and has not yet done so. A Defense Department spokesperson told Politico:

"To date, she has provided the Air Force no evidence that she meets the qualifications necessary to serve as an Air Force flight nurse, nor has she passed a medical physical which is also a prerequisite to her reinstatement," Lt. Col. Karen Platt said in an e-mailed statement. "If Major Witt shows that she meets the prerequisites to her reinstatement at some time in the future, the Air Force, DoD and DoJ will re-evaluate whether or not to seek a stay of the judge's ordered reinstatement, pending appeal of the case." 



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