According to news reports, the Justice Department is preparing to ask a federal judge to stay her ruling ending enforcement of the Pentagon's "Don't Ask, Don't Tell" policy banning gays in the military. But my sources insist that, as of last night, the White House, meaning President Obama, had not signed off on that course of action even though the Justice Department sent the White House a legal brief in near-record time.
Perhaps the decision has been made by now, but the last time I checked, senior officials were still debating both what to do and how to do it, cognizant that an appeal of the ruling could turn the party's activist base from petulant to pissed off in a matter of seconds.
There are no neat delineations in the universe of who is arguing for what, but there are several schools of thought about what Obama should do.
One group of advisers thinks that he needs to appeal the ruling because he can't get rid of "Don't Ask, Don't Tell" without the Pentagon, and the Pentagon is liable to gum up the works if it thinks the administration wants to dispense with the previously agreed upon timetable, which includes the completion of a major Department of Defense study about integration. A corollary argument here is that the National Security Staff is acutely aware of how difficult the military and Pentagon civilians can make life for the president in many unrelated endeavors. This group believes that if Democrats are successful in the Illinois, Delaware, and West Virginia Senate races -- not an impossible scenario by any means -- that Senate could very well schedule a clean and clear vote in a rump session.
Other groups of advisers believe that Obama should appeal the ruling, but concurrently ask -- or order -- the Department of Defense to take interim steps to halt all current investigations and not to initiate any new ones until the legal proceedings have been completed, or until the Senate authorizes the change in law. Within the Department of Defense, some senior officials are thinking about ways this might work. Others oppose any change to the timetable.
And then there's a group of advisers who appear to be as fed up with the maneuvering as Rachel Maddow is, and who want the president to make a public statement effectively saying, "Enough is enough. We've done this as orderly as we can. We can't control everything. But the policy is dead, as of today." Even under this scenario, gay soldiers wouldn't have access to spousal benefits just yet -- the DoD does need time to figure out how it would all work.
I don't know which way the administration is leaning. I do know that President Obama gets angry every time he's heckled by "Don't Ask, Don't Tell" protesters. He thinks he's doing everything he can given the constraints imposed on him by reality.
Any petition for an emergency stay will argue that the government is in the process of ending the gay ban, and that an orderly winding down is preferable from the standpoint of national security, according to someone who has been briefed on it. The government would ask the court to allow the Pentagon the time it needs to complete its study into the effects of integrating openly gay service-members. Judge Virginia Phillips gave the administration 60 days to decide whether to appeal her ruling, but the administration seems to think that it will be easier for Congress to pass legislation ending the ban in a lame duck session if it continues to show deference to military leaders.
Though the Justice Department's political leadership opposes "Don't Ask, Don't Tell," it does not want to set a precedent of allowing courts to change internal Defense Department regulations without input from the executive branch.
Speaking in Europe, Secretary of Defense Robert Gates said that he thought Congress, and not the courts, should act to end "Don't Ask, Don't Tell," AFP reported.
The White House believed it had 60 votes to end the ban in September but lost momentum when Majority Leader Harry Reid added immigration-related provisions to the defense appropriations act, causing several senators to switch their votes.
The Pentagon plans to complete its study in December, and it is likely to conclude that integrating gays will not impact readiness, morale, or national security. Already, Pentagon officials are figuring out how they might handle the logistics associated with spousal benefits and housing for same-sex partners.