There have been a series of confusing developments in the last few days that have wrong-footed some of the most astute observers of the DADT law.
First, the Department of Justice files a brief with the U.S. Ninth Circuit Court of Appeals that nowhere defends the constitutionality of DADT. Then, on July 6, the Court issues a ruling putting the lower court order banning DADT enforcement in effect immediately. Servicemember advocacy organizations cheer the Administration. Then, on July 11, the Court fires off an unsolicited order suggesting that the case be completely dismissed as "moot," meaning that there's no real dispute between the parties as to the unconstitutionality of the law. Alternatively, it suggests that the House of Representatives be empowered to intervene to defend DADT. Then, yesterday, the Department of Justice files two briefs. The first requests an emergency reconsideration of the stay, asking the Court to delay the lower court's ban on DADT enforcement. The second brief replies, a week early, to the Court's concern about whether the Administration is defending the DADT case, or if it should instead be given to Boehner et al. or dismissed as moot. The Administration's brief says:
"it has fully defended, and continues to defend, the constitutionality of 10 U.S.C. § 654, as it exists following enactment of the Don't Ask, Don't Tell Repeal Act of 2010" in a letter that argues that -- after the Don't Ask, Don't Tell Repeal Act was signed into law -- Section 654 became a "transitional provision."
In other words, the Administration is defending whatever is left of DADT after the repeal act was signed into law. That vague statement leaves a lot of wiggle room for the Administration to decide what parts of DADT it is defending, depending on what one thinks is left of DADT after the repeal act went into effect. The government's brief also said the Ninth Circuit misunderstood the effect of its brief in the unrelated DOMA case, where it agreed that DOMA is unconstitutional. While it didn't back off its stance in the DOMA case, it said there are issues here that are different, since Congress has set up a repeal process which needs to be respected by the courts. True enough, I suppose.
Servicemember advocacy organizations boo the Administration.
What in the world is going on here?
I believe that DADT is unconstitutional and should immediately be put on ice. However, because my years of practicing law have shown me time and again that the law is primarily a word game, I also know that the law has many strange twists and turns. An ill-considered move that seems like a good idea at the time can put you in a worse position, legally and politically. Even when you win, you can lose, and the courts breathe life into that hoary phrase "Pyhrric victory."
So what's up with Don't Ask Don't Tell?
The first thing to understand, as I argued late last week, is that it ain't over till it's over. We have all three of our government branches acting as Top Chefs nervously hovering over the DADT soup, and we know what happens to the broth when there are too many cooks.
First, we have the U.S. Ninth Circuit Court of Appeals, which is making everyone crazy with its back and forth orders. It wants some resolution as to what's being asked of it by the litigants. Second, we have the Administration and its military, which is working to certify repeal at something less than top speed. It wants to show its gay-friendliness, but it also wants to do things in its own time and in its own way, presumably to make the transition to the new policy smoother. Third, we have the House of Representatives, with Speaker Boehner et al. eager to get their hooks into the Administration and to gum up the works of the certification process and the Ninth Circuit.
As I argued on Tuesday, it would be better for the Administration to defend DADT on a "technical" basis than to let it descend into the maelstrom of notifying Boehner et al. that it is no longer defending, and giving them a chance to get into the case. Furthermore, if the case is dismissed as moot, the precedential value of the District Court decision banning DADT probably goes away. Even worse, there are still regulations on the books from the DADT days that can negatively affect servicemembers, and all those need to be found and revamped. As annoying as it is to have the Administration defending DADT on any basis, it's better to do this right.
The solution, to my mind, lies in letting the court process crawl along with the Administration firmly in the defendant's chair, and putting lots of political pressure on the Adminstration to finish the certification process.
I don't fault the servicemember advocacy organizations for raising the roof over the delays in the process of getting rid of DADT. After all, our servicemembers are still under threat of discharges, and some discharges are in active process.
As Chris Geidner noted in his report in MetroWeekly yesterday, (links omitted)
"On Jan. 10, however, in responding to the government's initial appeal to the Ninth Circuit, lawyers for LCR argued that, regardless of the reasoning, Section 654 -- DADT -- remained in effect, writing, 'During that time, the military will continue to refuse to process enlistments of individuals who openly declare their homosexuality. It will continue to require that serving personnel who are homosexual conceal that core aspect of their identity, and lie, in violation of their oath and their honor, if the subject arises.'
And, as has been seen, DADT does remain in effect, with administrative separation board hearings proceeding and discharges continuing under DADT. Although the emergency order states there only has been one DADT discharge since the passage of the repeal act, the Air Force has confirmed three discharges and one resignation related to 10 U.S.C. 654 in 2011."
Mr. Geidner quoted one of the plaintiffs in the lawsuit, Servicemembers United executive director Alex Nicholson: "The Administration's response to this latest development in the Log Cabin Republicans lawsuit is unfathomable and confusing. 'Don't Ask, Don't Tell' should be completely dead by now. Certification of legislative repeal has now been dragged out beyond a reasonable time frame, so the court stepped back in to get the job done. The President should just let this law die."
This is true in part. The Administration's response is confusing -- do they support DADT or don't they? But it's not unfathomable. As I've noted, there's good reason for the Adminstration not to let this case be defended by Boehner et al., and there's good reason not to let the District Court precedent die if the case is dismissed as "moot." I do agree that the President ought to get his game on and get the certification done ASAP.
But I do wonder at the outrage of the Log Cabin Republicans, which sounds a quite different note.
"LCR executive director R. Clarke Cooper called today's move "shameful" and said in a statement, "Let me be clear -- the president is asking the court for the power to continue threatening servicemembers with investigation and discharge, and the right to turn away qualified Americans from military service for no reason other than their sexual orientation. Even if the administration never uses that power, it is still wrong, and the Ninth Circuit was clear that there is no justification for continuing the violation of servicemembers' constitutional rights."
Shameful? The Administration's move isn't shameful. It's regrettable, and annoying, and leaves servicemembers in danger of discharge. But at the end of the day, it's clear to anyone with eyes to see that the Administration has little choice regarding the litigation. Defend it, or give it to Boehner et al. Who in their right mind would want that?
I agree with Bob Witeck, of Witeck-Combs Communications, an astute political observer:
"Having read Clark Cooper's message reminds me that if Log Cabin Republicans have one dominating political priority this year, it has very, very little to do with repealing DADT.
In their own words, Clark Cooper and Mitch McConnell (among others) have put aside all other high-minded policies, and instead surrender all other considerations to their total commitment to defeat President Obama in 2012, and the possible election of a Rick Perry, Michele Bachmann or Tim Pawlenty.
Another read on the DOJ action is quite simple, and it has zero to do with the President resurrecting "Don't Ask, Don't Tell." No serious person will read it in that light.
We are days away from certification and from Armed Services ownership of the hard-won repeal process. None of us want the policy remaining in place another day. But it is nothing but bloviation to distort the facts for partisan advantage -- and tilt the game towards their 2012 Presidential candidate who will work daily to defeat us and roll back our civil rights."
I certainly don't want that either. It would be nice if reality were less complicated. But it's not. So let's not quit one minute before the miracle. Push him to get the certification done -- yes! As you know, I'm not shy about criticizing the President, the Administration or Congress when it's merited. Let's not jump all over him for doing what he had to do in the courts.