Just posted this at AMERICAblog Gay. It's big news on the Don't Ask, Don't Tell front. The government's effort to discharge Lt. Col. Victor Fehrenbach under DADT have been stymied -- for now. (And, by "the government" I do mean the Obama administration.)
Victor Fehrenbach's attorneys have reached an agreement with the Air Force and DOJ. There are three key points: 1) The Secretary (or his designee) cannot reach a discharge decision until after August 27; 2) If the decision is discharge, Fehrenbach will have 21 day notice. He can move forward with an injunction in that time frame. 3) Air Force and Department of Justice (DOJ) are required to notify the court of their actions.
This is good news for Fehrenbach. According to various news reports and legal filings, the decision on whether or not to discharge Fehrenbach was on the desk of the Secretary of the Air Force. That could have happened at any moment, meaning Victor could have just been escorted off the base.
Now, Fehrenbach's attorneys have some say in the matter in advance. They won't be blind-sided, which is usually the case. And, they will take the DOJ and Air Force to court over the permanent injunction. Yes, the Obama administration's DOJ will be fighting in court to kick Fehrenbach out of the military. Still. They're still going to court to defend DADT and to kick out servicemembers.
First, the press release from SLDN. The actual agreement is below:
Servicemembers Legal Defense Network (SLDN) and Morrison & Foerster LLP, representing their client, Lt. Col. Victor Fehrenbach, reached an agreement today with the U.S. District Court for the District of Idaho, U.S. Department of Justice, and the U.S. Air Force, on the pending request for a temporary restraining order. The agreement prevents the Air Force from discharging Lt. Col. Fehrenbach under “Don’t Ask, Don’t Tell” (DADT), the discriminatory law barring gay and lesbian service members from serving openly and honestly, until the Court can schedule a hearing on the motion for a preliminary injunction. Attorneys for Lt. Col. Fehrenbach filed a motion in U.S. District Court for the District of Idaho last Wednesday seeking a court order preventing the Air Force from discharging Lt. Col. Fehrenbach, arguing that the government cannot establish that his continued service on active duty hinders “morale, good order and discipline, and unit cohesion.”Let's hope the Senate acts soon. And, let's also hope that the Commander-in-Chief actually stops letting the likes of Fehrenbach and other "mission critical specialists" from being discharged.
Statement by Morrison & Foerster’s M. Andrew Woodmansee:"This is exactly what we asked the Court to do in our motion on Wednesday, and we are pleased that the Air Force has agreed to preserve the status quo until we can have a full hearing. Of course, we continue to hope that the Air Force will do the right thing and let this war hero continue to serve this country."Statement by Servicemembers Legal Defense Network Executive Director and Army Veteran Aubrey Sarvis:“The agreement recognizes the immediate harm to Lt. Col. Fehrenbach and insures that he will eventually get to make his case at a full blown hearing without losing his job. This agreement is a victory for Lt. Col. Fehrenbach and our nation. The Air Force can still do the right thing and retain Lt. Col. Fehrenbach under the Pentagon’s own revised regulations on ‘Don’t Ask, Don’t Tell.’ The Senate needs to act next month to get rid of this antiquated law that dishonors some of our finest and most talented service members.”
Agreement between Lt. Col. Fehrenbach and DOJ/Air Force
