View From Washington: The DADT Deal

Now we know what we get when we try to drag people across the finish line. The White House and the Pentagon apparently had no interest in repealing "don't ask, don't tell" this year even as Congressman Patrick Murphy and senators Carl Levin and Joseph Lieberman soldiered on with the mission.

Don't take my word for it. Witness their statements.

From the Defense Department: "Secretary [Robert] Gates continues to believe that ideally the DOD review should be completed before there is any legislation to repeal the Don't Ask Don't Tell law. With Congress having indicated that is not possible, the Secretary can accept the language in the proposed amendment."

Over at the White House, Office of Management and Budget director Peter Orszag joined Gates in saying that "ideally" the Pentagon's study would be completed prior to a vote. But since "Congress has chosen to move forward with legislation now," Orszag conceded the proposed amendment "meets the concerns" that have been voiced by Defense secretary Gates and Adm. Mike Mullen, chairman of the Joint Chiefs of Staff.

Translation: This wasn't our idea, but all right, do what you need to do.

Hardly an endorsement and certainly not enough to make GOP senator Scott Brown or even Democratic senator Jim Webb comfortable enough to vote for the repeal attachment to the National Defense Authorization Act. Both said Tuesday they would not vote for the measure.

Brown was one of the top three members of the Senate Armed Services Committee whom repeal advocates considered swayable. No more. The other two were senators Bill Nelson and Evan Bayh -- both of whom signaled their support for repeal Tuesday. But repeal advocates already had them in a "soft yes" category, meaning they are now saying publicly what they had already been saying privately. (Senators Robert Byrd and Ben Nelson are the only holdouts on the new deal, though Nelson has said in the past he would vote against repeal.)

The word on the Hill is that, as of last weekend (i.e. before the new compromise), Levin had 14 of the 15 votes needed to pass a repeal measure in his committee. And with the potential abstention of one senator, 14 would have been enough. (That count continues to stand at 14 as of 7 p.m. Eastern Tuesday. UPDATE: The vote is now 15, based on senator Ben Nelson's support for the measure announced Wednesday.)

Discussions around what that repeal measure would include were ongoing as Levin continued to lobby his colleagues. But a couple concessions designed to pacify Gates were being considered: allowing the Pentagon to complete its study before implementation proceeded and potentially requiring a stamp of approval (e.g. a certification letter) from military leadership and/or the president.

But by the time repeal advocates were invited to the White House on Monday morning to be briefed on a new compromise, a third concession had been added. There would be no nondiscrimination mandate. In other words, even after the law is repealed, it will not be replaced at any point with a policy that explicitly states gays and lesbians are allowed to serve openly in the military.

It's not clear exactly when or why that provision was added, but now that all three concessions are included in the compromise, in my eyes, it's the most problematic. Some activists are understandably concerned that the first two concessions give the Pentagon virtually unfettered control over timing that could lead to a lot of foot-dragging. But at the very least, a nondiscrimination mandate would have guaranteed the outcome. With the current proposal, we not only have no idea when we'll arrive, we don't even know what the destination is.

Some political pragmatists are arguing that sacrificing the mandate was a necessary evil on the way to getting the approval of Gates and, ultimately, the final votes needed to pass the measure in the Senate Armed Services Committee. The bad news is, the votes may have already been on tap. And the really tragic news is, it's increasingly unclear that the compromise has won over any new votes. Apparently, the statement from Gates's spokesperson -- not even Gates himself -- was so weak that fence-sitters like Brown and Webb weren't persuaded to throw their weight behind the effort.

Of course, now that this amendment is on the table, the only thing worse than passing it would be not passing it. Why? Because all those lawmakers and strategists who continually argue that LGBT legislation is toxic will cry "I told you so" from the rafters if it fails. And a loss on repeal could have an adverse impact on the Employment Non-Discrimination Act, partner benefits, and any other piece of equality legislation waiting in the wings.

So how did we get where we are? The White House and Gates seemingly didn't want a vote this year. Activists wouldn't let up. Murphy, Levin, and Lieberman put in a heroic effort to salvage repeal. And in my estimation, when Levin was one vote away in the Senate committee, White House officials realized the repeal train was leaving without them and not hopping aboard was a no-win situation. If it passed, they would get no credit; if it failed by one vote, activists would castigate them for withholding support.

This compromise could still fail, and make no mistake, the deal was brokered by the White House, which then treated it as the redheaded stepchild it never wanted in the first place. But the outcome -- win or lose -- now has the administration's fingerprints on it, even though its refrain since Monday morning has been that Congress was forcing its hand.

Sadly, the best-case scenario -- passage -- will do nothing to stop the discharges in the near term. It is a critical step that removes the first roadblock to changing the policy at some indefinite point in the future. Passing the measure would not immediately repeal the law -- instead the "don't ask, don't tell" policy will continue until the DOD study is completed and Gates, Mullen, and Obama certify that repeal can proceed.

No matter what happens during the votes Thursday and Friday, the White House will deserve credit only after the law is repealed and replaced with a nondiscrimination policy. And if Congress votes to cede authority over the policy to the administration, President Obama will be uniquely empowered to issue an executive order that guarantees all Americans the opportunity to serve their country with integrity and honor.