Image: Dan Choi
Mario Anzuoni  /  Reuters
Dan Choi, who was dismissed from the U.S. Army for admitting he was gay, has been an advocate for allowing gays to openly serve in the military.
NBC News and news services
updated 10/19/2010 9:20:37 PM ET 2010-10-20T01:20:37

A federal judge formally refused on Tuesday to let the Pentagon reinstate its ban on openly gay men and women in the U.S. military while it appeals her decision declaring its "don't ask, don't tell" policy unconstitutional.

A day after tentatively siding against the Obama administration, U.S. District Judge Virginia Phillips issued a written decision denying a government request to lift her own injunction barring further Pentagon enforcement of the ban.

Although government concerns about military readiness and cohesion are important, "these interests are outweighed by the compelling public interest of safeguarding fundamental constitutional rights," she wrote in a six-page opinion.

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President Barack Obama has insisted he stands by his 2008 campaign pledge to end "don't ask, don't tell," but his administration had urged the judge to allow more time for a political remedy to the issue rather than a court-imposed one.

The Pentagon also has argued that an abrupt change in the 17-year-old policy, enacted into law under then-President Bill Clinton, would hamper the military.

But anticipating an unfavorable ruling on Tuesday, the Defense Department has instructed its recruiters for the first time to start accepting applications from enlistees who acknowledge they are gay.

Blog: Lt. Dan Choi signs up for military again

Nevertheless, the administration has served notice that it would take its case to the 9th U.S. Circuit Court of Appeals and seek to block Phillips' order there if she denied a stay.

Following Phillips' decision last week striking down "don't ask, don't tell," the Pentagon on Tuesday made clear that it had told recruiters they must accept gay applicants.

The opening, first spelled out last Friday, was seized by gay rights advocates like Iraq war vet Dan Choi, who showed up Tuesday at a recruiting station in New York City's Times Square.

"In the recruiting station," Choi said in a Twitter posting. "Apparently I'm too old for the Marines! Just filled out the Army application."

Choi, a lieutenant and Iraq combat veteran, was discharged under "don't ask, don't tell" when he came out as being gay in late 2008.

While activists were going to enlist, gay rights groups were continuing to tell service members to avoid revealing that they are gay, fearing they could find themselves in trouble should the law be reinstated.

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Douglas Smith, spokesman for U.S. Army Recruiting Command, said even before the ruling that recruiters did not ask applicants about their sexual orientation. The difference now is that recruiters will process those who say they are gay.

"If they were to self-admit that they are gay and want to enlist, we will process them for enlistment, but will tell them that the legal situation could change," Smith said.

He said the enlistment process takes time and recruiters have been told to inform those who are openly gay that they could be declared ineligible if the law is upheld on appeal.

"U.S. Army Recruiting Command is going to follow the law, whatever the law is," he said.

Earlier Tuesday, Pentagon spokeswoman Cynthia Smith told reporters that top-level guidance has been issued to recruiting commands informing them that the "don't ask, don't tell" rule has been suspended for now.

Recruiters also have been told to inform potential recruits that the moratorium could be reversed at any point.

Newsweek reports Obama does have other 'DADT' options

Phillips, who was appointed to the federal bench by Clinton, ruled in September that the policy he introduced in 1993 infringes on the constitutional free-speech and due-process rights of gay men and lesbians in uniform.

She put that opinion into effect on Oct. 12 with a blanket injunction requiring the military to stop enforcing the ban and drop pending investigations and discharges stemming from it.

"Don't ask, don't tell" was enacted as a compromise between previous regulations that had long excluded gays from the armed forces altogether and Clinton's original promise to open the military to gays and lesbians outright.

The new law prohibited commanders from asking service members or recruits about their sexual orientation but subjected troops to expulsion if homosexual behavior on their part was revealed or volunteered.

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In a separate case last month, a federal judge in Tacoma, Washington, ordered the reinstatement of a former U.S. Air Force Reserve flight nurse who was discharged from the military after revealing she is a lesbian.

The lawsuit challenging the policy was brought by the Log Cabin Republicans, a gay rights group, six years ago.

Clarke Cooper, executive director of Log Cabin Republicans, welcomed the decision.

"Judge Phillips is right to stand with servicemembers by rejecting President Obama's request to continue this discriminatory policy," he said in a statement. "It is vital that as a nation we uphold the fundamental constitutional rights of all soldiers, sailors, airmen, marines and coast guardsmen.

NBC News Pentagon correspondent Jim Miklaszewski, Reuters and The Associated Press contributed to this report.

Timeline: Timeline of 'don't ask, don't tell'

View how U.S. military policy has evolved since 1982, when the Pentagon formalized World War II-era policies banning gays.

Video: Gibbs: Obama will end ‘Don’t ask, don’t tell’

  1. Closed captioning of: Gibbs: Obama will end ‘Don’t ask, don’t tell’

    >>> the president and the first lady hit the campaign trail together, heading to ohio. with just 16 days until the election, is there anything the president can do to stop republicans from a major victory on november 2nd ? joining me now, white house press secretary , robert gibbs . welcome back to "meet the press."

    >> thank you.

    >> we are just 16 days away. something in "the washington post " caught my eye that summed up the difficulty for the president and the democrats . i'll put it up on the screen. it's about the west virginia senate race and hopeful joe manchin . he was one problem, the pesky d after his name. that's one problem he can't fix. quote, there's not much wrong with him, said john jenks, attending an event for republican john raese on wednesday. it's just that he's a drtemocrat. why is that such a problem?

    >> there's different political environments in different states. the over jowl environment is driven by our overall economic picture. it took us years to get into the mess we got ourselves in at the end of 2008 . it will take us a while to get out. we saw a financial system near collapse. we have a continuing housing crisis that we're making progress on dealing with. we have positive economic growth and we have nine straight months of private sector job growth . it will take a while to get out of the mess that took us a long time to get into.

    >> just this morning, ap story out, showing the poll. many obama 2008 supporters defecting to the gop. in many ways it's become a referendum on the president and his policies.

    >> i'm a little leery of polls that take three weeks to conduct just as a political professional. again, we're in a tough political environment because the country is in a tough economic environment . 9.6% unemployment, 8 million jobs that have been lost. we have candidates that are out there, making their positive case, because we know exactly what the republican party wants to do. david , they said it sitting probably right in the chair i'm sitting in. they want to go back to what we had in 2008 . they want to repeal things like wall street reform and putting banks back in charge of making financial decisions that affect not just wall street but affect main street . at the end of the day , people are going to understand that message and not turn over control of congress to people that want to take us back to what we're trying to get out of.

    >> last time you were here, you made a little news and raised eyebrows by what you said. i want to play what you said but in the full context and have you talk about it, give an updated version of it. this is about the election last year.

    >> is the house in jeopardy, the majority for the democrats in the house in jeopardy?

    >> there is no doubt that there are a lot of seats that will be up, a lot of contested seats. i think people are going to have a choice to make in the fall. but i think there's no doubt there are enough seats in play that could cause republicans to gain control. there's no doubt about that.

    >> you also went on to say that it will depend on how strong the campaigns are by democrats . first of all, how do you see the landscape now?

    >> again, there's no question it is a tough and challenging political environment. we're the beneficiary of a lot of political real estate after 2006 and 2008 that hadn't been held by democrats for a long period of time. but, look, i think that campaigns in this cycle are being run on a lot of local issues and issues that are important not nationally but to individual states and individual congressional districts . i think our candidates have done a remarkably good job in a tough, political environment and i think that come election night , we'll retain control of both the house and the senate.

    >> you believe that?

    >> i do believe that.

    >> what's different now as opposed to then?

    >> well, again, i think right now you see an electorate by democrats that is more engaged. you mentioned the president out on the trail. he is joined today by a very popular first lady in an important state like ohio. 20,000 people signed up under duvall patrick's website for the event we had yesterday, 26,000 people in wisconsin. there's excitement about what this president is trying to do. there's an energy around it. we're seeing that in tricky generic congressional ballots and shrinking enthusiasm.

    >> the president has pointed messages and i want to show a portion of one of his talks here on tuesday.

    >> the question is going to be whether, once again, hope overcomes fear. because what essentially the other side has decided is that they're going to try to ride fear and anxiety all the way to the ballot box on november 2nd .

    >> he is accusing republicans of riding fear and anxiety to the ballot box . yet with his talk about the u.s. chamber of commerce and the influence of foreign money, a lot of people question whether he, in fact, is guilty of the same thing. this is what the president said back in october in maryland.

    >> just this week, we learned that one of the largest groups paying for these ads regularly takes money from foreign corporations. so, groups that receive foreign money are spending huge sums to influence america's elections, and they won't tell you where the money for their ads come from. so, this isn't just a threat to democrats . all republicans should be concerned. independents should be concerned. this is a threat to our democracy.

    >> a threat to our democracy, yet the white house has not produced proof of any foreign funds in the ads. this is what "the washington post " said about this general issue. foreign donations are not the problem, but secret money, they say in the editorial, pouring into the coming election is alarming. it should be plugged into future campaigns and could be, with the switch of a senate vote or two. but the rhetoric about this development, from president obama on down is irresponsiblebirresponsibly alarmist. bruce josten, the u.s. chamber of commerce 's chief lobbyist told the new york tooib times that the chamber 's 115 foreign affiliates pay less than $1 hun $100,000 in membership dues out of a total budget of $200 million. the foreign money is kept segregated accounts. the white house seems to be willing to stoke xenophobia without any evidence for its accusations.

    >> it does seem to take money from foreign companies, from companies in other countries. they are running $75 million worth of ads. david , you and i don't know exactly who is contributing to that, because there's a program that keeps all of their donors and involvement in these ads a complete secret. you're not going to know today. you're not going to know tomorrow. you're not going to know after the elections. what's the agenda of those that would contribute and write million dollar checks to influence races like in colorado or throughout the country? what's their political agenda ? this is solved quite easily. bruce josten, chief lobbyist, could simply open up the books and simply show people exactly where the donations are coming from and who is paying for the ads. i have to say, david , it's a pretty easy political solution to show the american people where the money is coming from. since it's been a week and a half, two weeks in this debate and they haven't shown you where the money is, it calls into question where that money comes from.

    >> isn't it striking that an administration that passed health care reform , massive stimulus to try to grow the economy is in, its, using a fear tactic, talking about karl rove , chamber of commerce and secret money into the campaign?

    >> it's just the facts. karl rove , who believed quite frankly that the 2004 race had potential to derail our democracy before he started running a group that we now both agree, i think, has a chance to derail democracy. they spent $50 million. chamber is spending $50 million. if you add it up, it's $399 million. nobody knows who those donors are or what their political agenda is. what do they want from the next senator or in the next congressman? $400 million injected into this political campaign .

    >> is this more smoke than fact?

    >> absolutely not. we could know all the facts by simply having karl rove and others lay out exactly where their donors come from and exactly where that money -- what the agenda is behind those big checks.

    >> isn't the bigger issue here than karl rove this poll question that bloomberg asked earlier this month, whether people believe that children in your life will have a better life than you have? 51% say they're somewhat or not confident in that. the faith in president obama in making a better future was very high when he came into office. here is where it stands now.

    >> well, look, i don't doubt that there are concerns throughout this country and there's a deep frustration. you can include the oval office in that, in getting our economy moving again. the president works every day not to do what is politically popular, but to do what is right. investing in auto companies and ensuring financial collapse not from a recession to a great depression may not have been the most popular thing to do, but it was the right thing to do. and every step of the way, david , in facing economic catastrophe, republicans said no. the people in this country, in order to effect their outlook on the future need a party in the republicans that's willing to become part of democracy and be part of government. i don't doubt that as we look through the messages of what happens on election day , regardless of the outcome, the american people are going to want two political parties to work together to solve our problems. quite frankly , from the very get-go, from the very first day, there was a coordinated strategy by mitch mcconnell and the republicans to simply say no to everything that president obama wanted to do. now we know why. they want to go back to what happened in 2008 and 2007 where karl rove is the architect of these outside groups and i think it's pretty emblematic of wanting to take us back to the bush years.

    >> do you call on democratic candidates like joe manchin , like a dozen or so blue dog democrats in a congress to rebuff their support from the chamber of commerce that they have in this race?

    >> look, the chamber has certainly constitutionally protected rights to air ads. nobody is arguing that they can't be involved in the election. but the president has said -- not just in the last two weeks. the president has said this in the state of the union , in criticizing the supreme court 's decision, that groups that support democrats and groups that support republican, liberal or conservative, ought to simply tell the american people where they get their money. who is paying for --

    >> you're not concerned about democrats getting support from the chamber ?

    >> no. look, the chamber supported the president's recovery plan. we would like to have had the chamber 's support in dealing with small business tax cuts that republicans oppose and took us three months longer to get than we should have. we would, quite frankly , like the chamber 's support on wall street reform that starts to put main street back in charge and not held hostage by wall street . again, there was a coordinated effort not to have that happen, not because it was right for the american people , but because it was all a series of political pl ploys.

    >> i want to ask you about a big news item this week, and that is the issue of the don't ask, don't tell policy in the military, the president speaking on thursday at an mtv town hall said that --

    >> i've said very clearly that, including in a state of the union address , i'm against don't ask, don't tell, and we're going to end this policy.

    >> yet on that very day, the president's justice department filed an appeal to halt a judge's ruling that would have struck down don't ask, don't tell. so, if the president wants the law to go away, if he wants the ban to go away, why is he still supporting the law in the court?

    >> let's be clear. the president believes the law is discriminatory, unjust and, quite frankly , you have men and women who are willing to lay down their life for this country. those people ought to be able to serve. the law that was struck down that the president opposes -- one, the house has passed repeal and we hope that the senate takes up appeal quickly.

    >> what if it doesn't? what does the president do if the senate doesn't act?

    >> we have a process in place to work with the pentagon for an orderly and disciplined transition from the law that we have now to an era that don't ask, don't tell doesn't exist. i will say this, david . don't ask, don't tell will end under this president. the courts have decided, the legislature is begin ining to decide and the president is firmly in the place of removing don't ask, don't tell.

    >> does he believe it's unconstitutional?

    >> he thinks it's discriminatory and unjust, and most of all, it harms our national security .

    >> if you keep defending it in the court, how does it end? you can pronounce it dead but how does it end in the courts?

    >> it ends in the congress. it's a law and the most durable solution is to repeal that law. the president asked the house to do that, and they did. there's enough votes, i think, to do it in the senate. again we have to get through republican filibuster. it harms our national security . it's discriminatory. it's time for it to end. i will say it again, david . this president will end don't ask, don't tell. you're seeing from the courts that they're deciding that don't ask, don't tell, quite frankly , is -- it's time for it to end and that time is coming very soon.

    >> from "the new york times" magazine, the education of a president. and it talks about the president and white house 's vision for what happens after november 2nd , whether you lose control of the house or the senate or you don't. if it's a slimmer majority. a portion of the article written by peter baker . i'll put it up on the screen. president obama has already begun thinking about what went wrong and what he needs to do to change course for the next two years. he has spent what one aide called a lot of talking about obama 2.0. what is obama 2.0? what comes next?

    >> a couple of different things. we've got to address problems that sit before us. we have a medium and long-term fiscal situation that we all understand is unsustainable and it will only be solved if the two parties are willing to work together. most importantly, we passed some important legislation that decr creates a foundation for long-term economic growth . wall street reform and health care reform . it's going to take a lot of coordinated energy and work to implement those. i think that's what the president -- you'll see the president focused on in the next two years, regardless, quite frankly , of --

    >> how do you say to the voters, i hear you. there's going to be some kind of course correction? what does that look like?

    >> i think we'll have time to figure it out after the election when we know the final results. right now the president's focus is gon getting our economy stronger and moving forward.

    >> you said you would never trade the job of press secretary. do you stick by that or might you be elsewhere in the administration or in washington?

    >> you know, david -- and i think you would pretty easily agree with this. it is a tremendous honor and privilege to walk into that building every morning to serve this president or any president. i would love to be the manager of the atlanta braves but they hired somebody this week. i will just have to be inordinately happy.

    >> might you run the dnc?

    >> i've spent no time thinking about or talking to people about what comes next for me. we're focused on what comes next for this country.

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