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Obama administration expected to appeal ruling on gays in military

From Terry Frieden, Larry Shaughnessy and Xuan Thai, CNN
  • The appeal is possible this week, sources say
  • A bill before Congress would repeal the "don't ask, don't tell" policy
  • Obama opposes the policy, his spokesman says

Washington (CNN) -- The Obama administration is expected to appeal as soon as Wednesday a federal judge's ruling that halted the Defense Department from enforcing its policy that bars openly gay people from military service, according to senior administration officials familiar with the government's plans.

U.S. District Court Judge Virginia Philips issued an injunction Tuesday that bans enforcement of the "don't ask, don't tell" policy throughout the military services.

While the government has up to 60 days to file an appeal to the Ninth Circuit Court in San Francisco, California, officials familiar with the case said that could happen in the next day or two.

A Justice Department spokesman declined comment.

The sources familiar with the government's plans expect a motion for an emergency stay to halt the injunction to be filed first with Philips as a matter of procedure. If she rejects it, as expected, the request for an emergency stay would accompany the formal appeal to the Ninth Circuit Court.

A three-judge panel would be appointed to immediately consider the request for an emergency stay.

The case was brought by the Log Cabin Republicans, a gay organization. The Justice Department, while opposed to the "don't ask, don't tell" policy, is obligated to defend laws passed by Congress.

A Justice Department official said that although the administration believes the law is discriminatory, it will nonetheless defend it as it does when all acts of Congress are challenged.

White House Press Secretary Robert Gibbs referred all questions on a possible appeal back to the Justice Department, but said President Barack Obama "strongly believes it's time for this policy to end."

"The president strongly believes this policy is unjust, detrimental to our national security and that it discriminates against those who are willing to die for this country," Gibbs told reporters, saying he discussed the matter with the president earlier Wednesday morning.

Emphasizing process over time, Gibbs repeatedly told reporters that ending the "don't ask, don't tell" policy is more a matter of how and not when. The president, Gibbs said, believes the law should be changed by Congress, not by the courts, to allow for a smoother transition away from the policy by the military, which is fighting two wars.

"Bottom line is this is a policy that is going to end; it's not whether it will end but the process by which it will end," Gibbs said. "The courts have demonstrated that time is ticking on the policy of 'don't ask, don't tell.'"

According to Gibbs, part of that process is having Congress end the policy, saying it would be better "to have all the branches of government aligned in how we do this. That would add some order to it. That would make it easier to do."

A bill currently before Congress would overturn the measure after a Pentagon review is completed in December.

Secretary of Defense Robert Gates told reporters traveling with him in Asia that he believes the law should be changed by Congress not by the courts, according to media reports.

A day after the ruling, Defense Department officials seemed unsure if commanders were being advised how to proceed regarding the injunction.

Pentagon spokesman Col. David Lapan said the Pentagon doesn't even know how many cases there are throughout the Defense Department of individual troops being disciplined by the military for violating the policy.

"There is no way to tell. These things are handled by individual commanders. There is no 'everybody report up to DoD everything you are doing on these cases,'" Lapan said.

Maj. Gen. John Campbell of Regional Command East in Afghanistan said he's seen no impact or reaction to the judge's ruling among his troops.

"I really don't see an impact on our soldiers here today. I don't see an impact by what the judge said," Campbell told reporters during a briefing at the Pentagon. Soldiers, he said, "probably have no clue of that (judge's) statement out there."