But U.S. Rep. Ike Skelton, D-Mo., the chairman of the House Armed Services Committee, is an opponent of the provision in the bill to repeal “Don’t Ask, Don’t Tell” and a supporter of the engine. In an interview with The Cable’s Josh Roin, he basically laughed off the veto threat.

He also linked the repeal of “Don’t Ask, Don’t Tell” to the administration’s fight to end development of a second engine model for the F-35 fighter plane. Obama and Gates have promised to veto Skelton’s defense policy bill if Congress insists on adding more than $400 million for the engine, which the military says it doesn’t need.

If Obama wants to repeal the law, he won’t want to follow through on his very clear threat to veto the bill over the fighter engine, Skelton suggested.

“It’s rather interesting, because there’s an item in the bill called ‘Don’t Ask, Don’t Tell’ that the president thinks keenly strong about. Now will he veto a bill that has that in it?,” Skelton wondered aloud. “I’m sure that goes through the creases of his mind.”

Now, the Senate version of the bill doesn’t contain funding for the second engine of the plane. So the magic of the House-Senate conference could bring the bill to Obama’s desk without anything veto-provoking within it.

But that doesn’t answer the political calculation that Skelton is raising. If the bill comes to Obama’s desk with the engine money in it, what’s the priority? Keeping a promise to the gay community or keeping a promise to his defense secretary?

Meanwhile, here’s Rogin’s account of just why exactly Skelton opposed placing a repeal of “Don’t Ask, Don’t Tell” in the defense bill. Was it to preserve Secretary Gates’ timetable for receiving the perspective of a Working Group he convened on how to repeal the ban before any legislative action, as many of the provision’s opponents desired? Apparently not:

“What do mommas and daddies say to a seven-year-old child about this issue? I don’t know,” Skelton said. “I think it would be a family issue that would concern me the most. … What they might see in their discussions among the kids.”

In a big setback for U.S. Sen. Joe Lieberman, I-Conn., and U.S. Rep. Patrick Murphy’s, D-Pa.,  efforts to insert amendments overturning the military’s ban on open gay service in this year’s defense authorization bill, Igor Volsky of ThinkProgress has obtained letters from the chiefs of the Army, Navy, Marine Corps and Air Force urging legislators to forestall a legislative repeal until after the Pentagon’s Working Group on implementing the repeal of “Don’t Ask, Don’t Tell” completes its report in December.

The markup of the Senate version of the bill is underway in the Armed Services Committee. A floor vote in the House is expected Thursday.

As Volsky observes, the compromise enshrined in the amendments would punt implementation of the repeal until after the Working Group issues its guidance. But I’ve been hearing for days that key Pentagon leaders, despite Defense Secretary Gates’ begrudging support for the legislation, were embittered by the White House’s Monday pledge to LGBT activists to acquiesce to the legislative push. Regardless of the amendment’s substantive respect for the Working Group’s timetable, those leaders thought that the Working Group represented a mechanism for overturning “Don’t Ask, Don’t Tell” with maximum military buy-in and minimal disruption to wartime operations. (Of all the service chiefs, only Gen. James Conway, the Marine Corps commandant, opposes overturning the ban on open gay service.)

The chiefs’ opposition indicates that the “Don’t Ask, Don’t Tell” fight has fallen into in a briar patch of acrimony, where substantively small differences appear massive due to injured pride and perceived disrespect.

The U.S. Senate Armed Services Committee will begin to mark up the fiscal 2011 defense authorization bill at 1:30 p.m. CST. Until members emerge late Wednesday night, it’s a black box of information for determining the contours of the half-trillion-dollar-plus piece of legislation, including the fate of U.S. Sen. Joe Lieberman’s, I-Conn., amendment to repeal the military’s ban on open gay service.

That’s why the coalition of LGBT-rights organizations pushing to secure passage in the committee and then later this week on the House floor are trying as hard as they can to lock down votes by mid-afternoon.

There’s going to be a rally/press conference at 10 a.m. with six veterans, five of whom were either discharged or chose not to re-enlist because of “Don’t Ask, Don’t Tell,” urging senators and congressmembers to vote for repeal. Veterans are going to deliver 20,000 pro-repeal postcards to Congress — focusing mostly on the Senate. Specifically, the coalition – comprised of groups like Servicemembers United, the Human Rights Campaign and the Servicemembers Legal Defense Fund — continues to target six states represented by undecided or wavering legislators: West Virginia, Virginia, Massachusetts, Nebraska, Indiana and Florida. Already, its released polling in those states that show scrapping “Don’t Ask, Don’t Tell” has wide support.

In advance of a complementary House floor vote later this week, the coalition sent an e-mail alert Tuesday asking 750,000 people around the country to contact their members of Congress in support of repeal. It’s going to send another one Wednesday asking them to phone member offices. The idea is to escalate pressure, capping off a build-up of several months that’s brought veterans affected by “Don’t Ask, Don’t Tell” — and those who just believe overturning it is the right thing to d0 — to key states and districts.

That effort got the White House to acquiesce to the strategy on Monday, and Defense Secretary Robert Gates to reluctantly accept the legislative push on Tuesday. But it’s not won over every member of Congress it’s targeted. U.S. Sen. Scott Brown, R-Mass., saw 77 percent of Massachusetts voters backing “Don’t Ask, Don’t Tell” repeal, but the new senator — a lieutenant colonel in his state’s National Guard — said Tuesday that he’s voting against Lieberman’s amendment.

So is U.S. Sen. Jim Webb, D-Va., a Marine veteran of Vietnam and a former Navy secretary, even after the coalition sent a letter from Virginia servicewomen urging him to support repeal. Both claim that Gates’ original plan — to hold off legislative efforts at repeal until a Pentagon working group on its implementation issues guidance to him in December — ought to proceed. Over in the House last night, the chairman of the armed services committee, U.S. Rep. Ike Skelton, D-Mo., made the exact same argument as his grounds for opposition.

The coalition believes that the Senate committee still has a significant number of undecideds, soft-yes and soft-no votes.

“This is one of the best opportunities for repeal that has come around,” said Michael Cole of the Human Rights Campaign. “The fact that you have congressional leaders supporting it, the president supporting it and Secretary Gates and Adm. Mullen saying it will do what they want in respecting the working group, the stars have aligned for putting repeal closer to reality than ever.”

Lieberman will introduce this language into the Senate Armed Services Committee’s mark-up of the fiscal 2011 Defense Authorization Act on Wednesday. He has the support of chairman U.S. Sen. Carl Levin, D-Mich.; U.S. Rep. Patrick Murphy, D-Penn., for a complementary measure in the House version of the bill during this week’s floor debate; and, finally, the White House.

But while the press might be writing that the White House deal means the fight is effectively over, “Don’t Ask, Don’t Tell” repeal activists are just gearing up for a grueling week. The Human Rights Campaign is putting millions of dollars and tons of locally based effort around the country into urging wavering senators on the committee to vote for Lieberman’s text and for the House amendment. Michael Cole of the Human Rights Campaign noted to me yesterday that “even though we have some outstanding congressional leaders, our issues are continually ones that require education and making sure members understand these issues and why it’s important to protect the community.”

Here’s the text of the Lieberman amendment:

Committee Amendment Proposed by Mr. Lieberman
At the appropriate place in title V, insert the following:

SEC. [ARM10802]. DEPARTMENT OF DEFENSE POLICY CONCERNING HOMOSEXUALITY IN THE ARMED FORCES.

(a) COMPREHENSIVE REVIEW ON THE IMPLEMENTATION OF A REPEAL OF 10 U.S.C. § 654.—
(1) IN GENERAL.—On March 2, 2010, the Secretary of Defense issued a memorandum directing the Comprehensive Review on the Implementation of a Repeal of 10 U.S.C. § 654 (section 654 of title 10, United States Code).
(2) OBJECTIVES AND SCOPE OF REVIEW.—The Terms of Reference accompanying the Secretary’s memorandum established the following objectives and scope of the ordered review:
(A) Determine any impacts to military readiness, military effectiveness and unit cohesion, recruiting/retention, and family readiness that may result from repeal of the law and recommend any actions that should be taken in light of such impacts.
(B) Determine leadership, guidance, and training on standards of conduct and new policies.
(C) Determine appropriate changes to existing policies and regulations, including but not limited to issues regarding personnel management, leadership and training, facilities, investigations, and benefits.
(D) Recommend appropriate changes (if any) to the Uniform Code of Military Justice.
(E) Monitor and evaluate existing legislative proposals to repeal 10 U.S.C. § 654 and proposals that may be introduced in the Congress during the period of the review.
(F) Assure appropriate ways to monitor the workforce climate and military effectiveness that support successful follow-through on implementation.
(G) Evaluate the issues raised in ongoing litigation involving 10 U.S.C. § 654.

(b) EFFECTIVE DATE.—The amendments made by subsection (f) shall take effect only on the date on which
the last of the following occurs:
(1) The Secretary of Defense has received the
report required by the memorandum of the Secretary referred to in subsection (a).
(2) The President transmits to the congressional defense committees a written certification, signed by the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff, stating each of the following:
(A) That the President, the Secretary of Defense, and the Chairman of the Joint Chiefs of Staff have considered the recommendations contained in the report and the report’s proposed plan of action.
(B) That the Department of Defense has prepared the necessary policies and regulations to exercise the discretion provided by the amendments made by subsection (f).
(C) That the implementation of necessary policies and regulations pursuant to the discretion provided by the amendments made by subsection (f) is consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.

(c) NO IMMEDIATE EFFECT ON CURRENT POLICY.— Section 654 of title 10, United States Code, shall remain in effect until such time that all of the requirements and certifications required by subsection (b) are met. If these requirements and certifications are not met, section 654 of title 10, United States Code, shall remain in effect.

(d) BENEFITS.—Nothing in this section, or the amendments made by this section, shall be construed to
require the furnishing of benefits in violation of section 9 7 of title 1, United States Code (relating to the definitions of “marriage” and “spouse” and referred to as the “Defense of Marriage Act”).

(e) NO PRIVATE CAUSE OF ACTION.—Nothing in this section, or the amendments made by this section, shall be construed to create a private cause of action.

(f) TREATMENT OF 1993 POLICY.—
(1) TITLE10.—Upon the effective date established by subsection (b), chapter 37 of title 10, 18 United States Code, is amended—
(A) by striking section 654; and (B) in the table of sections at the beginning of such chapter, by striking the item relating to section 654.
(2) CONFORMINGAMENDMENT.—Upon the effective date established by subsection (b), section ARM10802 S.L.C. 571 of the National Defense Authorization Act for Fiscal Year 1994 (10 U.S.C. 654 note) is amended by striking subsections (b), (c), and (d).

U.S. Sen. Joe Lieberman plans to introduce an amendment Wednesday to repeal "Don't Ask, Don't Tell." (Pete Marovich/ZUMA Press)

Activists opposed to the law met Monday morning with White House officials ahead of a dual-tracked strategy in Congress to insert a formal repeal of the 17-year old law in next year’s defense funding bill.

On Wednesday, the Senate Armed Services Committee will mark up the 2011 Defense Authorization, and U.S. Sen. Joe Lieberman, I-Conn., plans to introduce an amendment repealing “Don’t Ask, Don’t Tell.” He’ll be followed by U.S. Rep. Patrick Murphy, D-Pa., an Iraq war veteran, who said Monday he would introduce a complementary amendment into the House’s version of the bill when it receives a full floor debate later this week. If passed, it would allow the Pentagon a few months’ worth of a grace period so an internal review due in December can guide how the implement overturning the ban.

By Monday night, activists were announcing what the Human Rights Campaign’s president, Joe Solomonese, said in an official statement was the “brink of historic” action to get rid of “Don’t Ask, Don’t Tell.” While legislative language was not available by press time, several prominent activists cheered the White House for clearing the way for what Aubrey Sarvis, an Army veteran and one of the activists who took part in the White House meeting, called “a dramatic breakthrough in dismantling ‘Don’t Ask, Don’t Tell.’”

Peter Orszag, the White House budget director, wrote to Murphy late Monday to say the administration “supports the proposed amendment” on repeal, given that it recognizes the “critical need” for uniformed input to guide how repeal will work in practice. Orszag’s letter did not argue any need for repeal, and reiterated that the administration’s first choice would have delayed getting rid of “Don’t Ask, Don’t Tell” until at least 2011.

The contours of a potential deal paving the way for a legislative repeal this week were first floated by retired Army Gen. John Shalikashvili in the Washington Post on Saturday. Defense Secretary Robert Gates and Adm. Michael Mullen, the chairman of the Joint Chiefs of Staff who expressed his opposition to the law in February, dismayed activists by urging congressional leaders in April to delay any legislative remedies for “Don’t Ask, Don’t Tell” until a Pentagon working group surveying military attitudes about how to implement any repeal delivers its final report in December.

Shalikashvili, himself a former chairman of the Joint Chiefs of Staff at the dawn of “Don’t Ask, Don’t Tell,” proposed cutting the legislative and bureaucratic Gordian Knot. “Congress could repeal the federal statute and return authority to the military to set rules about gay troops, just as the armed services had before ‘don’t ask, don’t tell’ became law in 1993,” he wrote. “Indeed, acting now to remove the constraints imposed by that law is the most faithful response that Congress can offer to the working group’s efforts to engage service members and their families.”

That appeared to offer all sides a way out of the impasse. President Barack Obama will get to keep the promise he made to the LGBT community in his State of the Union address for a 2010 repeal, and the Pentagon will ensure that the recommendations of the working group, led by Army Gen. Carter Ham and top Pentagon lawyer Jeh Johnson, form the basis of a post-”Don’t Ask, Don’t Tell” future. Michael Cole, a spokesman for the anti-”Don’t Ask, Don’t Tell” Human Rights Campaign, portrayed a legislative repeal this week as a necessary prerequisite to implementing the working group’s findings. “If the law is not repealed this year, when the implementation study comes down, [the Pentagon will] not able to carry it out,” Cole said.

In their April letter to Congress, Gates and Mullen warned that a legislative fix ahead of Johnson and Ham’s working group report would “send a very damaging message to our men and women in uniform that in essence their views, concerns and perspectives do not matter.” But chief Pentagon spokesman Geoff Morrell sounded more open to congressional action on Monday, however reluctantly. “Given that Congress insists on addressing this issue this week, we are trying to gain a better understanding of the legislative proposals they will be considering,” Morrell said in an e-mail.

Activists are seeking to ensure they don’t waste their congressional opportunity. The Human Rights Campaign is spending millions this week to pressure six senators on the Armed Services Committee who haven’t taken a firm position on repeal but the group believes are persuadable: Robert Byrd, D-W.V., Jim Webb, D-Va., Ben Nelson, D-Neb., Bill Nelson, D-Fla., Evan Bayh, D-Ind., and Scott Brown, R-Mass. Field staff in the states of all six senators are calling the legislators’ district offices, mailing thousands of postcards and scheduling rallies with anti-”Don’t Ask, Don’t Tell” servicemembers and veterans demanding an end to the law.

Cole said he anticipated close votes in both the Senate committee and the House floor. But he vowed Human Rights Campaign would “keep up the pressure and remind wavering members that 75 percent of the American people support repealing ‘Don’t Ask, Don’t Tell’ and this is an issue to strengthen our military and respect LGBT troops at the same time.”

Elana Kagan (Jay Mallin/ZUMApress.com)

No one has chronicled Kagan’s embrace of the executive more assiduously than Glenn Greenwald, who’s appalled that Obama would pick someone with such a record. Given her relatively thin paper trail, one of the primary pieces of evidence for her perspective is her 2009 nomination hearing for the solicitor generalship, in which she expressed eagerness to bless Sen. Lindsey Graham’s (R-S.C.) perspective that the president possesses broad wartime authorities to detain enemy combatants. (“No daylight” was how The New York Times assessed the exchange between the two.)

That assent appears to flow from a broader perspective. Charlie Savage of the Times found this weekend that Kagan, the dean of Harvard Law School from 2003 to 2009, was the tardiest and least forceful of Obama’s Supreme Court shortlist to criticize the Bush administration’s expansive assertions of executive wartime powers. Savage explored a 2001 law review article she penned defending the Clinton administration’s executive unilateralism:

In the article, Ms. Kagan argued that even if Congress has given the authority to make a regulatory decision to an agency, the president has the power to control that decision unless a statute explicitly forbids him from interfering. She wrote that it was “ironic” that “self-professed conservatives” were associated with calling for stronger executive power in recent decades because a more robust presidency could achieve “progressive goals.”

Still, her defenders note that she also wrote, “If Congress, in a particular statute, has stated its intent with respect to presidential involvement, then that is the end of the matter.” And in 2007, she gave a speech celebrating the actions of Bush lawyers who battled the White House over the legality of the warrantless surveillance program.

It’s worth noting that she hired the most prominent of them: Jack Goldsmith, the former chief of the Office of Legal Counsel, who gained prestige by attempting to roll back Bush’s excesses on torture and surveillance. Then again, it’s also worth noting that Goldsmith advocates creating a permanent national security court to entrench a “a system of non-criminal military detention for enemy terrorists who for many reasons are difficult to prosecute and convict by trial.”

It would foolish to assume that Kagan and Goldsmith believe the same thing in this regard, absent an explicit statement on a national security court from the nominee. But “non-criminal military detention for enemy terrorists” will very likely be among the first things that Kagan would confront on the high court. Graham and Attorney General Eric Holder pledged last month to work on a system of indefinite detention without trial for a cohort of current and future terrorism detainees. Just yesterday, Holder went further, vowing to expand the Miranda warning’s “emergency” exemption clause. Beyond that, the military commissions that the administration and Congress revised last year are still untested fora for terrorism prosecutions, plagued by belated rules of procedure and in the midst of a potentially defining challenge about the admissibility of coerced evidence. Two senior administration officials responsible for the new scope of the commissions expressed concern last year that the process rights allowed by the commissions may not withstand judicial scrutiny.

More generally, the Obama administration may not be claiming inherent executive authority for its expansive national security agenda, as its predecessor did– it prefers to locate that power within a brief and rushed post-9/11 statement of congressional intent — but among its claims are that American citizens whom it declares are terrorist operatives can be killed without any form of due process.

In fairness, lots of judges and legal scholars, even on the left, believe that presidential authority is at its greatest during wartime. But as Greenwald has pointed out most vigorously, the most important dissenter from that perspective is the justice Kagan may replace: John Paul Stevens, who led the charge to roll back the expansive detention authority the Bush administration asserted.

Senior Obama aides have said they seek to create a “sustainable approach” on questions like terrorism detention authority that can claim a consensus within Congress and the courts that can last beyond the Obama administration’s term in office. That’s why the administration has disappointed civil libertarians on the issue so greatly. By nominating Elena Kagan to the Supreme Court, Obama stands a better chance of winning judicial affirmation to whatever system he’s building with Graham. If Kagan doesn’t look like a new Stevens, it may be that the second coming of John Paul Stevens would stand sharply in the way of Obama’s desired “sustainable approach” to the intersection of national security and the law.

President Obama and Omar Khadr (WDCpix, The Toronto Star/ZUMApress.com)

Khadr, a teenager when initially detained, has been held for nearly half his life at a facility that the Obama administration has pledged to close. He will be tried in a legal venue that Obama rejected as a Senator and embraced, in reformed fashion, as president. What happens this week at Guantanamo will determine whether Obama’s pledge that the new, revised military commissions can deliver internationally-recognized justice is meaningful: the pre-trial hearing in Khadr’s case will provide the first in-depth examination of whether Khadr’s treatment in U.S. custody amounts to torture; will determine whether prosecutors can use evidence against him acquired under abusive, coercive circumstances that civilian courts would never allow; and whether additional statements made by Khadr in subsequent and less-coercive circumstances are fair game or inextricable from his overall abuse.

On Nov. 7, 2008, three days after Obama won the presidency, Khadr’s military lawyers introduced a motion to suppress evidence commission prosecutors sought to produce that came from Khadr’s interrogations in Afghanistan and Guantanamo Bay. Under the commissions, evidence obtained under torture cannot be used, but the scope of the commissions’ allowance for coercively-obtained testimony remains largely unclear. Since their creation in 2002, the commissions have only produced three convictions, two of which were the result of plea deals; the Supreme Court has twice ruled that the commissions provide insufficient due process rights for defendants.

Khadr’s attorneys charge that the teenaged detainee underwent over 40 interrogations in 2002 at Bagram Air Field in Afghanistan after being shot and suffering shrapnel wounds in a battle with U.S. forces in July 2002 in the eastern Afghan province of Khost. During those interrogations, Khadr was given limited pain medication; had his head hooded while “interrogators brought barking dogs into the interrogation room”; was placed in stress positions despite his gunshot and shrapnel wounds; and was threatened with rape. After 90 days, U.S. military officials flew him to Guantanamo Bay, where he was again placed in stress positions; had his hair torn out; threatened again with rape; and was even used as “a human mop” by military police after he urinated on the floor of his interrogation room after being placed in stress positions for a prolonged period of time.

Information that emerged from those interrogation sessions — basically, what Khadr told his interrogators while being tortured — comprises a substantial portion of the prosecution’s case against him. It isn’t clear how much of the government’s case against Khadr relies on what he told his interrogators after his abusive treatment. The government will call witnesses who will attest to seeing Khadr throw the grenade that killed Sgt. First Class Christopher J. Speer. (At least one, Sgt. Layne Morris, has come forward in the press.) And the government will probably also seek to introduce statements Khadr made that it maintains were not the result of torture. But Khadr’s lawyers contended in their November 2008 motion that “all statements made by Mr. Khadr subsequent to any statement he made in response to coercive interrogation must also be suppressed as fruit of the poisoned tree,” a legal concept holding that the taint of improperly acquired evidence extends to any secondary evidence it produced.

It’s a crucial question for the military commissions. Every detainee who tried before the commissions encountered periods where they were harshly interrogated but then later faced less-coercive interviews, “so this is a real test case for the viability of other prosecutions,” said David Frakt, a lieutenant colonel in the Air Force Reserve judge-advocate general corps who used to be defense counsel for Mohammed Jawad, another juvenile held at Guantanamo Bay. For instance, if Khalid Shaikh Mohammed and the other 9/11 conspirators who were initially held in undisclosed CIA prisons are brought back to military commissions, Khadr’s hearing may determine whether everything they have told their interrogators — even long after being abused — is inadmissible before the commissions. To Jennifer Turner, a human-rights researcher with the ACLU who will travel to Guantanamo Bay to observe the Khadr hearing, if the judge rules that Khadr’s statements to his interrogators can be used against him, “it will show the military commissions under Obama are no different than those under Bush.”

Indeed, it is because of Obama that the issue has remained unsettled. Upon taking office in January 2009, Obama issued executive orders banning enhanced interrogation; vowing to close Guantanamo Bay within a year; and suspending the military commissions while his administration decided how it would deal with the approximately 240 Guantanamo detainees it inherited from the Bush administration. That suspension, coupled with Senator Obama’s objections to the commissions on constitutional grounds, raised hopes among civil libertarians that the administration would ultimately scrap its predecessors’ ad hoc approach to terrorism prosecutions.

Instead, in a May 2009 speech, Obama pledged to reform the commissions, not abandon them. Among the reforms he promised was to “no longer permit the use of evidence — as evidence statements that have been obtained using cruel, inhuman, or degrading interrogation methods.” By October, Congress passed and Obama signed the Military Commissions Act of 2009. Section 948(r) indeed enshrines the ban on statements made owing to those methods. But it gives judges leeway to enter into evidence “other statements of the accused… only if the military judge finds” that they are indeed voluntary.

And that’s where Khadr’s defense motion comes in. While there have been at least two other pre-trial procedural hearings since Obama opted to retain the commissions, none have had the significance of Khadr’s. There are ten days’ worth of hearings scheduled for the prosecution and the defense to tussle over the motion to suppress and what the Military Commissions Act of 2009 requires for it. The Washington Independent will be at Guantanamo Bay for the proceedings, and will provide frequent reports — in blog posts, stories, photo and video — about what they determine for the future of the military commissions in the age of Obama.

There are at least two additional complicating factors. First is that while the commissions have a new law authorizing them, the military has yet to issue a new manual for officers of the court to understand how the procedures under the 2009 law are to be implemented. “If you go to the website for the military commissions,” noted Air Force Col. Morris Davis, a former chief prosecutor for the commissions, “there is no information on who is heading up the military commissions, no information about a new Manual for Military Commissions that implements the changes Congress made in late 2009, and no information about revised Rules for Military Commissions.” As a result, Davis said, “it appears we’re still trying to lay the tracks after the train has left the station, which is no way to run a railroad or a criminal justice system.”

Maj. Tanya Bradsher, a spokeswoman for the commissions, said that “a revised Manual will be issued shortly,” but added that the manual was less important than the law. “The standards for the admissibility of statements are set out in the Military Commissions Act of 2009, and any procedural or evidentiary rules cannot change the standards set by Congress,” Bradsher said.

Frakt said it isn’t that simple. “The military commission rules of evidence have been substantially changed by the Military Commissions Act of 2009, particularly with regard to the standards to be applied to determining the admissibility of a statement,” he said. “The Manual will have significant additional guidance and discussion, because it’s the implementing regulations for this. It’s possible the judge will gather all the evidence and simply sit around and wait for the Manual to come out before issuing a ruling.” In terms of actually arguing the motion, though, “it’s still unclear what rules apply.”

A second complication is how much detail about Khadr’s treatment a judge will allow the outside world to see. There has never before been a two-week court session to examine, in large part, whether the treatment a detainee suffered in a U.S. facility amounts to “cruel, inhuman or degrading treatment,” the standard in the Military Commissions Act for inadmissibility. “This will be one of the first really in-depth looks into the treatment of detainees in the early days of the war on terror,” Frakt said. “There are going to be a lot of press and observers [at Guantanamo]. It’s going to be a nightmare for the government if they have to constantly close the hearing to talk about things that are embarrassing to the government.”

Davis, the former chief military commissions prosecutor, holds little sympathy for Khadr, whom the government says a videotape shows emplanting improvised explosive devices in Afghanistan. (The video does not implicate him in the death of Sgt. Speer.) But he said his problem was with the Obama’s claim that it needs to keep the options of both federal courts and military commissions to handle terrorism prosecutions, a claim that struck him as both politically motivated and unjust.

“It’s too bad that the Obama administration is back on its heels in a defensive crouch, afraid to go toe-to-toe with the Cheney right-wing fanatics, and continues to try to have it both ways with the option of military commissions and trials in federal courts still in play,” Davis said. “Hopefully, at some point they’ll grow a pair and make a choice, but this double standard where we’ll give a detainee as much justice as we can and still ensure we get a conviction shows how hypocritical we are when it comes to the rule of law. We talk the talk, but we don’t walk the walk.”

Spencer Ackerman will be reporting all this week from Guantanamo Bay, Cuba. Read his work at The Washington Independent.

The U.S. military discharged 443 people last year for being gay.

That statistic comes from Servicemembers United, which opposes “Don’t Ask, Don’t Tell” and seeks its repeal. It’s lower than in previous years: There were 627 such discharges in 2007, for instance.

From a Servicemembers United press release:

“As expected, this record low in total annual ‘Don’t Ask, Don’t Tell’ discharge numbers reflects a continuing downward trend, as military commanders continue to ignore this law that is clearly outdated and which impairs their unit readiness,” said Alexander Nicholson, a former U.S. Army interrogator who was discharged under ‘Don’t Ask, Don’t Tell’ and the current Executive Director of Servicemembers United. “But this new number still means that 443 lives were unnecessarily turned upside down in 2009, 443 careers were unfairly terminated, and military units unexpectedly lost a valuable asset 443 times last year as two wars raged.”

According to the group, that figure doesn’t include discharges from the reserves or the National Guard, so the full number of “Don’t Ask, Don’t Tell” discharges is higher. Whether the law actually gets repealed this year or not, last month Defense Secretary Robert Gates took unilateral measures to curb its enforcement.

Lt. Dan Choi — the West Point graduate, Iraq veteran, Arabic linguist and arguably most forceful advocate for repealing “Don’t Ask, Don’t Tell” — had a simple question for Defense Secretary Robert Gates after Gates’ announcement of changes to the implementation of the ban on open gay military service.

“Why would anybody believe this is, in any way, restoring the humanity of the service?” Choi asked during a phone interview.

For Choi, the issue comes down to integrity. “What’s inhumane about ‘Don’t Ask, Don’t Tell’ is the fact that soldiers have to lie,” he said. “It’s the only federal policy that enforces shame, particularly because these are soldiers willing to risk their lives to protect America.” The measure of the Obama administration’s seriousness to repeal, Choi argued, is its unwillingness to place a provision repealing it in the Defense Authorization Bill and daring senators to filibuster the Pentagon’s funding vehicle.

“What will pave the way for full repeal is a recognition and cognizance on the part of the administration,” Choi said, “that the fundamental reason to get rid of ‘Don’t Ask, Don’t Tell’ is that it sacrifices, violates and compromises the integrity of all soldiers, not just gay soldiers.”

Choi was arrested after leading a protest to the gates of the White House last week to pressure President Barack Obama to live up to his pledge of ending “Don’t Ask, Don’t Tell” this year. At a Human Rights Campaign dinner last fall, Obama encouraged equal-rights activists to “continue to pressure leaders — including me,” and Choi said he took Obama’s words “as an order.”

Choi also called on Iowa Gov. Chet Culver to speak out on the issue as the commander-in-chief of the Iowa National Guard. Culver declined, saying it wasn’t a state issue. ]]> http://iowaindependent.com/30654/lt-choi-not-pleased-with-%e2%80%98don%e2%80%99t-ask-don%e2%80%99t-tell%e2%80%99-changes/feed 1 http://iowaindependent.com/30633/defense-secretary-sharply-limits-%e2%80%98don%e2%80%99t-ask-don%e2%80%99t-tell%e2%80%99 http://iowaindependent.com/30633/defense-secretary-sharply-limits-%e2%80%98don%e2%80%99t-ask-don%e2%80%99t-tell%e2%80%99#comments Thu, 25 Mar 2010 18:41:03 +0000 Spencer Ackerman http://iowaindependent.com/?p=30633 In a major victory for opponents of the military’s ban on open homosexual service, Defense Secretary Robert Gates significantly revised how the Pentagon will implement the so-called “Don’t Ask, Don’t Tell” law, effectively making it difficult to remove a soldier, sailor, airman or marine who does not out himself or herself as gay.

Secretary of Defense Robert Gates (Matthieu Rondel/Maxppp/ZUMA Press)

Gates said the changes, endorsed by Joint Chiefs of Staff and vetted by the Pentagon’s top lawyer, would add “a greater measure of common sense and common decency” for service members negatively impacted by the law. The Servicemembers Legal Defense Network, an advocacy organization for gay and lesbian service members, considered Gates’ changes a “major step toward the end of the law,” according to spokesman Kevin Nix.

Starting today, only a general officer in an accused service member’s chain of command can discharge someone for a violation of the ban, and only an officer with the rank of commander or lieutenant colonel or higher can conduct a fact-finding inquiry to recommend a discharge. The standards of evidence provided to those inquiries will become far less burdensome on the accused, with what Gates called “special scrutiny on third parties who may be motivated to harm the service member.” Entire categories of evidence will no longer be admissible, including testimony from clergy members, physicians, abuse counselors, security-clearance review personnel and mental-health personnel — a move that also significantly improves troops’ quality of life.

Read more at The Iowa Independent’s sister site, The Washington Independent.