Obama administration asks federal judge to stay order barring "Don't Ask, Don't Tell" policy

RIVERSIDE - The Obama administration asked a federal judge in Riverside today to stay her order barring the U.S. military from continuing its ''Don't Ask, Don't Tell'' policy against open gay service.

''This court's granting of a worldwide injunction against the military presents serious legal issues, and the balance of hardships warrants a stay,'' Justice Department attorney Paul G. Freeborne wrote in a brief to U.S. District Judge Virginia Phillips.

Freeborne acknowledged that President Barack Obama ''strongly supports'' repeal of the statute, but first wants to hear the findings of a Department of Defense ''working group'' that is trying to identify ''how best to implement a change in policy.''

The working group's report is due Dec. 1.

Speaking at a Washington, D.C., town hall meeting today, Obama told a crowd that ''Don't Ask, Don't Tell'' must end, but it requires more to dismantle an act of Congress than the simple ''stroke of a pen.''

''This policy will end. It will end on my watch,'' Obama said. ''But I do have an obligation to make sure that I'm following some of the rules. I can't simply ignore the laws that are out there. I've got to work to make sure that they are changed.''

In his brief, Freeborne concluded that immediately enforcing the injunction would ''frustrate the (Pentagon's) ability to recommend and implement policies that would ensure that any repeal of DADT does not irreparably harm the government's critical interests in military readiness.''

The Justice Department intends to appeal Phillips' ruling to the U.S. Ninth Circuit Court of Appeals.

The judge issued her permanent injunction on Tuesday, enjoining the Defense Department from moving forward with investigations or proceedings that could lead to the discharge of a service member because of ''Don't Ask, Don't Tell.''

The Log Cabin Republicans sued to have the act invalidated based on due process and freedom of speech infringements.

Congress passed the law -- U.S. Code Title 10, Section 654 -- in 1994 as a compromise to the Clinton administration's push to allow open homosexual service.

In her Sept. 9 ruling declaring it unconstitutional, Phillips cited the testimony of several ''outed'' gay service members -- including an Air Force major who was discharged after 13 years on the job -- as well as three studies suggesting nullification of the policy could be accomplished without seriously damaging morale .

Elaine Donnelly, president of the nonprofit Center for Military Readiness, released a statement Wednesday calling Phillips' decision ''outlandish.''

''Judge Phillips apparently sees herself as Supreme Judicial Commander of the U.S. Military,'' Donnelly wrote. ''It is absurd to suggest that a rogue district judge knows more than elected members of Congress.''

Donnelly said the judge's ruling would not survive scrutiny by the U.S. Supreme Court.

''White House officials are well aware that allowing the judiciary to take command of the military ... would break faith with the troops and destroy bonds of trust that must exist between the commander-in-chief and the forces he leads,'' Donnelly said.

The Flag & General Officers for the Military -- a group of 1,200 retired generals and admirals -- has said revoking Don't Ask, Don't Tell could ''break'' the armed forces, undermining morale and driving away potential recruits.

The Log Cabin Republicans filed suit in 2004 seeking to have the act overturned on the grounds that it was discriminatory and violated homosexuals' rights to due process and freedom of speech guaranteed by the U.S. Constitution.

The plaintiffs' lead attorney, Dan Woods, argued it was unconstitutional based partly on the Supreme Court's findings in the 2003 case of Lawrence v. Texas, in which the high court struck down that state's anti-sodomy laws, declaring sexual conduct a private matter that was constitutionally protected.

Woods also said the Ninth Circuit Court of Appeals' decision in Witt v. U.S. Air Force so attenuated Don't Ask, Don't Tell as to make it virtually inapplicable.

The Witt case, which arose from a gay Air Force nurse's challenge to her 2006 discharge, resulted in the ''Witt Standard,'' which states that in order for the government to justify booting gays, it has to show that not doing so would prove detrimental to ''good order and discipline.''

The U.S. Attorney's Office did not call any witnesses during the two-week, non-jury trial in July stemming from the Log Cabin Republicans' lawsuit and rested its defense of the federal law on congressional debate in 1993.