Social Lawfare and the Judicial DADT Cram-Down

Posted: October 14, 2010 in Uncategorized
Tags: , , , ,

Judge Virginia Phillips

Lawfare entails actions designed to achieve specific effects that contribute directly to desired military and political outcomes.

Social lawfare, one might then surmise, would be the actions designed to achieve specific effects that contribute directly to desired social outcomes.

Social lawfare has been pursued by those aiming to repeal the Clinton-administration’s 17-year old Don’t Ask Don’t Tell directive.  DADT is more than a policy: it is public law.

About 18 months ago, I thought the DADT roll-back would take the form of a cram-down and would be unilaterally directed by OSD.  However, on reflection, OSD decision-makers not only lacked the authority to do so, but that they could see such an effort would need to be carefully managed to try to mitigate push back and address unforeseen consequences as much as possible.

Within the last 12 to 15 months, I thought the DADT roll-back would come in the form of a legislative directive, following an OSD fig-leaf type study to support a direction that had already been chosen.

When the legislative effort failed, social lawfare, a judicial cram-down/fiat, already well underway on several fronts, was served up.

The most notable and recent result:

Judge Virginia A. Phillips of Federal District Court for the Central District of California issued an injunction banning enforcement of the law and ordered the military to immediately “suspend and discontinue” any investigations or proceedings to dismiss service members.

Judge Phillips has apparently been able to ferret out important and pertinent facts that invalidate the five times DADT has been upheld in federal court and once in a DADT-related Supreme Court decision.

Or it could be social lawfare.

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