Dan Choi, a West Point graduate and officer in the Army National Guard who is fluent in Arabic and who returned recently from Iraq, received notice today that the military is about to fire him. Why? Because he came out of the closet as a gay man on national television.
Some readers might think it unfair to blame Obama. After all, the president inherited the "don't ask, don't tell" law when he took office. As Commander-in-Chief, he has to follow the law. If the law says that the military must fire any service member who acknowledges being gay, that is not Obama's fault.
Or is it?
A new study, about to be published by a group of experts in military law, shows that President Obama does, in fact, have statutory, stroke-of-the-pen authority to suspend gay discharges. Obama could simply invoke his authority under federal law (10 U.S.C. §12305) to retain any member of the military he believes is essential to national security.
Or he could take advantage of a legal loophole. The "don't ask, don't tell" law requires the military to fire anyone found to be gay or lesbian. But there is nothing requiring the military to make such a finding. The president can order the military to stop investigating service members' sexuality.
An executive order would not get rid of the "don't ask, don't tell" law, but would take the critical step of suspending its implementation, hence rendering it effectively dead. Once people see gays and lesbians serving openly, legally and without problems, it will be much easier to get rid of the law at a later time.
I spent a day with Dan Choi last month, and he is not someone we want to fire from the military. He loves the armed forces. He served bravely under tough combat conditions in Iraq. His Arabic is excellent, and he used his language skills to defuse many tough situations and to save lives, both Iraqi and American. All of his unit mates know he is gay, and they have been very supportive of him. But he doesn't want to live a lie.
Obama has been praised for delaying efforts to get rid of "don't ask, don't tell," and some major gay rights groups are actively lobbying to delay consideration of the issue. They seem to believe that Obama should focus on other gay-rights issues first, and that he shouldn't spend his precious political capital trying to ram a repeal bill through Congress.
This misses the point. Obama could sign an executive order today. With roughly three-quarters of the public, including a majority of republicans, in favor of open gay service, a meaningful public backlash is unlikely. A slight majority of service members prefer that the policy be left in place, but polls also show that only a tiny minority of them care strongly about the issue, and that the vast majority of service members are comfortable interacting with gays.
Obama may believe he has nothing to lose by waiting. But what about Dan Choi's career? Is this really the right time to fire military officers who are fluent in Arabic?
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