Lieutenant Colonel Victor Fehrenbach and his attorneys at Servicemembers Legal Defense Network (SLDN) and Morrison & Foersteris is playing hard ball with the the Air Force, the Pentagon and the Obama and has filed papers in Idaho federal court requesting a temporary order blocking his discharge. A Federal District Court Judge in Boise should hear the request on Friday.
From The New York Times:
“On Wednesday, Colonel Fehrenbach’s lawyers filed papers in Idaho federal court requesting a temporary order blocking his discharge. The petition contends that a discharge would violate Colonel Fehrenbach’s rights, cause him irreparable harm and fail to meet standards established in a 2008 federal court ruling on don’t ask, don’t tell.
For advocates of abolishing the ban against gay men, lesbians and bisexuals serving openly, Colonel Fehrenbach’s case has become something of a line in the sand. Though President Obama has called for ending the ban and Congress has begun moving in that direction, gay service members continue to face investigations and discharge, albeit at a lower rate than in past years.
Lawyers for Colonel Fehrenbach assert that his case is among the most egregious applications of the policy in their experience. The Air Force investigation into his sexuality began with a complaint from a civilian that was eventually dismissed by the Idaho police and the local prosecutor as unfounded, according to court papers. Colonel Fehrenbach has never publicly said that he is gay.
However, during an interview with an Idaho law enforcement official, he acknowledged having consensual sex with his accuser. Colonel Fehrenbach’s lawyers say he did not realize Air Force investigators were observing that interview; his admission led the Air Force to open its “don’t ask” investigation”
Because this is playing out in Idaho, the higher standards for discharge (laid out by the Ninth Circuit in Witt v. Department of the Air Force) should control. That works to Fehrenbach’s advantage. Also, remember that in March of this year, the Pentagon imposed new “more humane” standards for DADT discharges earlier this year. That should also work to Victor’s advantage as he was outed by a third party who wasn’t considered credible by local law enforcement authorities
It’s going to be an intersting few days for the Department Of justice and The Obama Administraion. The DOJ knows that there’s a recommendation to discharge Fehrenbach on the desk of the Secretary of the Air Force. If they fight the case, Victor will be discharged. But DOJ told another judge that DADT is going to be repealed. So why would they want to lose a decorated war hero?
Lieutenant Colonel Fehrenbach will be appearing on The Rachel Maddow Show tonight on MSNBC