I've argued previously that should the Senate fail to repeal DADT, given the slim chances going forward, the administration should take the executive branch route of refusing to defend the law and telling the military not to enforce it. Defense Secretary Robert Gates' response to reporters following yesterday's failure in the Senate offers a glimpse of how hard that might be. Gates reiterated that he thought the government had an obligation to defend the law in court, and this is what he said when asked whether the military should be preparing to end the policy beforehand in the event a court overturns it:
Q: (Off mike) -- two questions. Given that you think this could happen fairly soon, during the next six months or so, are you beginning to prepare for the court decision overturning the law? And secondly, how soon do you think it could happen?
SEC. GATES: Well, I don't know the answer to the second question. The Eighth Circuit -- the Ninth Circuit will hear this case presumably in the spring. But we do -- we do now have a roadmap in terms of implementation in the paper that was prepared by the working group. But I think it would be a serious mistake to start training and preparing before the law is changed because I think it will just confuse the troops. What is the law and what's not the law if you're being trained to go in both directions? So while we have the blueprint and we have a plan, I think it would be a mistake to begin that process until there is action with respect to the law.
Of course, just as Republicans might prefer it if DADT were overturned by a court so they could rail against judicial activism instead of defending an unpopular policy, the administration might prefer to avoid any friction with the military or drawing heat on themselves by refusing to enforce the policy after arguing that a legislative fix was necessary precisely because they were obligated to.
