Via James Dao at The New York Times, a critical move by Lt. Col. Victor Fehrenbach and his attorneys at Servicemembers Legal Defense Network (SLDN) and Morrison & Foerster. Fehrenbach has gone to court to prevent his imminent discharge under DADT:
On Wednesday, Colonel Fehrenbach’s lawyers filed papers in Idaho federal court requesting a temporary order blocking his discharge. The petition contends that a discharge would violate Colonel Fehrenbach’s rights, cause him irreparable harm and fail to meet standards established in a 2008 federal court ruling on don’t ask, don’t tell.The request for the TRO was filed this afternoon in Federal Court in Boise, Idaho.
For advocates of abolishing the ban against gay men, lesbians and bisexuals serving openly, Colonel Fehrenbach’s case has become something of a line in the sand. Though President Obama has called for ending the ban and Congress has begun moving in that direction, gay service members continue to face investigations and discharge, albeit at a lower rate than in past years.
Lawyers for Colonel Fehrenbach assert that his case is among the most egregious applications of the policy in their experience. The Air Force investigation into his sexuality began with a complaint from a civilian that was eventually dismissed by the Idaho police and the local prosecutor as unfounded, according to court papers. Colonel Fehrenbach has never publicly said that he is gay.
However, during an interview with an Idaho law enforcement official, he acknowledged having consensual sex with his accuser. Colonel Fehrenbach’s lawyers say he did not realize Air Force investigators were observing that interview; his admission led the Air Force to open its “don’t ask” investigation.
Fehrenbach's legal team is playing hard ball with the the Air Force, the Pentagon and the Obama administration -- and they should. If the TRO isn't granted, Fehrenbach could be discharged any day.
According to the memo accompanying the request, which is posted below, "The Court may issue a TRO to prevent “immediate and irreparable injury, loss, or damage [that] will result to the movant before the adverse party can be heard” at a hearing." Victor meets that standard. His discharge is imminent.
Basically, under Air Force regulations, as explained in a footnote to the memo, when a servicemember is told that his case is being decided by the Secretary, it means that the Air Force Personnel Board has recommended a discharge -- and that's what just happened to Fehrenbach. His attorneys were told that his case had been referred to the Secretary's office:
On August 4, 2010, counsel fpr Lt. Col. Fehrenbach was informed that the Air Force Personnel Board (AFPB) had met and made a recommendation to Secretary Donley’s designee, Mr. Joe Lineberger. (Declaration of M. Andrew Woodmansee in Support of Application for Temporary Restraining Order and Preliminary Injunctipn at ¶ 13.) Pursuant to AFI 36-3206 Chapter 6.10, a recommendation by the AFPB that Lt. Col. Victor Fehrenbach should be retained would not need to go to the Secretary or his designee for further action. Under Air Force regulations, further action by the Secretary or his designee is required if the AFPB recommended discharge. Woodmansee Decl. at ¶ 13.Hence, Fehrenbach knows the recommendation is for a discharge. Plus, the Pentagon admitted to the NY Times that "Fehrenbach’s case was under final review by the Air Force secretary." That's why this action was taken today -- to prevent that discharge from happening. It's a ballsy move by Fehrenbach, SLDN and his lawyers. Otherwise, one of these days very soon, Victor would be escorted off his base.
Because this is playing out in Idaho, the higher standards for discharge (must laid out by the Ninth Circuit in Witt v. Department of the Air Force should control. That works to Fehrenbach's advantage. Also, remember that in March of this year, the Pentagon imposed new "more humane" standards for DADT discharges earlier this year. That should also work to Victor's advantage as he was outed by a third party who wasn't considered credible by local law enforcement authorities.
A Federal District Court Judge in Boise should hear the request on Friday. The Department of Justice be on the opposing side and will have to argue against issuance of the TRO. Just weeks ago, the DOJ was arguing that the Log Cabin Republican's case against DADT shouldn't move forward because DADT was going to be repealed. Then, why discharge Fehrenbach?
You may recall that last year, at the LGBT cocktail reception on June 29, 2009, while so many of our "leaders" were enjoying their cocktails and reveling in their A-list status, Fehrenbach actually had a very important and substantive conversation with President Obama about his situation. According to Victor, who appeared that same night on Rachel Maddow's show:
[Obama] looked me right in the eye and he said, “We‘re going to get this done.” And then he continued to say, you know, everyone seems to be onboard. We‘ve got about 75 percent of the public that supports this. He said, but we have a generational issue. And so, there is some convincing to do, that there is a generational gap it seems and some of the senior leadership.Well over a year later, it hasn't been done. And, Victor's lawyers know that his discharge is imminent.
So, this presents a conundrum. DOJ knows that there's a recommendation to discharge Fehrenbach on the desk of the Secretary of the Air Force. If they fight the TRO, Victor will be discharged. But DOJ told another judge that DADT is going to be repealed. So why would they want to lose a decorated war hero?
The next couple days will be very interesting. Can't wait to see how the DOJ responds.
And, while the decision to discharge Fehrenbach is on the desk of the Secretary of the Air Force, it might just as well be on the desk of President Obama, who is, after all, the Commander-in-Chief. The President has stated repeatedly that DADT presents a national security risk -- and he's vowed to end the policy. Obama said to Victor, “We‘re going to get this done.” Now is the time to do it.
I understand we'll see Victor on Rachel Maddow tonight.
Here are the Application for the TRO and Permanent Injunction and the Memo in support, which were filed this afternoon at the Federal Courthouse in Boise, Idaho:
Lt Col. Fehrenbach's TRO to prevent DADT discharge and memo.
