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I think he has a good argument--to challenge on grounds of "national Security"---(it works for everything else!!)
"http://www.nytimes.com/2004/12/16/opinion/16frank.html?th" December 16, 2004 Ready, Willing, Disqualified By NATHANIEL FRANK TWO lawsuits were filed last week against the United States military. In one, eight soldiers are challenging an Army policy that extended their tours of duty in the Middle East. They are suing to get out of military service. In the other suit, 12 gay and lesbian veterans are challenging the decade-old "don't ask, don't tell" policy that bars known gays from serving in the armed forces. They are suing to get back into the military.
The connection between the two suits may be more than coincidental. An analysis of Pentagon data reveals that the military is losing gay troops in the occupational areas where shortfalls are most dire. In addition to the "stop loss" orders that prompted last week's lawsuit, the Pentagon has recalled thousands of former troops from civilian life to fill these gaps.
Many of these recalls would have been unnecessary if the military had not fired so many gay service members. This year the Pentagon approved the recall of 72 veterans in communication and navigation, but it has expelled 115 gay troops in that category since 1998; it recalled 33 in operational intelligence but has expelled 50 gays; in combat operations control, it recalled 33 but expelled 106.......
The gay plaintiffs are suing on constitutional grounds. Yet the evidence suggests that the current policy should also be challenged on grounds of national security......
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