Posted by Jonathan Adler:
Don't Ask, Don't Tell, Don't Repeal, Don't Defend:
http://volokh.com/archives/archive_2009_05_17-2009_05_23.shtml#1242913472
In today's WSJ, Brian Hughes, a former Army Ranger twice awarded the
[1]Commendation Medal, [2]makes a powerful case for ending "Don't Ask,
Don't Tell":
I was a line infantryman in the Army's Ranger regiment from
2000-04, earning a promotion to sergeant within three years. In
that time, my platoon performed dozens of combat missions on the
front lines. Our lives depended on complete mutual trust.
Several of my colleagues knew I was gay. We lived in the closest
possible conditions. When there were showers, we showered together.
When we were out overnight on the cold, bare mountains of
Afghanistan, we slept huddled together for warmth. It should go
without saying that there was nothing remotely sexual about these
situations. We had uncomfortable experiences -- we were at war,
after all -- but my buddies were never uncomfortable with me.
The reason I didn't come out to more of my comrades wasn't out of
concern for morale. I was worried about losing my job.
Since "Don't Ask, Don't Tell" came into effect, some 13,000 service
members have been fired for being gay. Thousands more decided
against pursuing a full career in the military and let their
contracts expire. Replacements can be recruited and trained -- at a
cost of more than $36 million per year -- but each individual's
institutional knowledge is lost, to the detriment of the unit and
the mission. . . .
Straight and gay soldiers have been fighting side by side in
Afghanistan, Iraq and beyond without incident. More than 20 of our
closest allies have integrated gays into their ranks, including all
of NATO except Turkey. American troops work and live with these
forces without incident.
Here at home, every government service is integrated, including the
paramilitary sections of the CIA that work hand in glove with the
armed services. The presence of gays in these organizations is a
nonissue. The idea that our soldiers, sailors, airmen and Marines
would have any greater difficulty adjusting is an insult to their
professionalism.
As a candidate, Barack Obama promised to repeal "Don't Ask, Don't
Tell." As President, he has not lifted a finger to overturn the ban.
This is disappointing. As Hughes notes, public opinion is strongly
against the policy, and there is real reason to believe that, if
anything, maintaining the exclusion on openly gay servicemen and women
compromises our security and defense.
At the same time the Obama Administration has not taken any steps to
reverse the policy, it is simultaneously neglecting to defend existing
policy, as embodied in a federal statute, in court. As the WSJ
reported earlier this week, failed to file a petition for certiorari
to challenge a [3]decision of the U.S. Court of Appeals for the Ninth
Circuit that held the military's policy should be subjected to
intermediate scrutiny. The decision prompted a [4]vigorous dissent
from denial of en banc, and could eventually result in the
invalidation of the law. As Ed Whelan [5]notes, last year the Justice
Department argued that the Ninth Circuit's decision "creates an
inter-circuit split, . . . a conflict with Supreme Court precedent,
and an unworkable rule that cannot be implemented without disrupting
the military." Now, however, the Solicitor General's office has
decided not to file cert on the grounds that it's an interlocutory
decision. So, as a consequence, the military will have to defend a
policy that the Administration opposes under a more rigorous standard
of review than may be warranted under current law (and leaves in place
a highly contestable precedent that were certainly affect additional
cases in the Ninth Circuit for some time).
It seems to me that the Obama Adminsitration has it wrong on both
counts. The Administration should ask Congress to repeal the law. We
don't need to lose any more [6]Daniel Chois. But until the law is
repealed -- and I am assuming that the Administration cannot end the
policy unilaterally through an administrative edict -- the Justice
Department has an obligation to defend the laws that are on the books,
particularly where they concern the military. Perhaps the argument for
leaving this "interlocutory" opinion in place is more powerful than I
recognize, but I am skeptical. It seems to me the Administration is
ducking a controversy, [7]perhaps even hoping that the courts will do
its dirty work to end the law. Our military and servicemen and women
deserve better. Even if one opposes "Don't Ask, Don't Tell" -- as I do
-- one should not want military personnel policy run by the courts.
References
1. http://www.tioh.hqda.pentagon.mil/awards/arcom1.html
2. http://online.wsj.com/article/SB124286225508241195.html
3. http://www.ca9.uscourts.gov/datastore/opinions/2008/05/20/0635644.pdf
4. http://www.ca9.uscourts.gov/datastore/opinions/2008/12/03/0635644o.pdf
5.
http://bench.nationalreview.com/post/?q=NTY2YmVjNTA4ZDg1M2ZmMjRlNTE0NjBlZGZjMzI1MGY=
6. http://abcnews.go.com/US/story?id=7568742
7.
http://bench.nationalreview.com/post/?q=YmU1OThmZGQ0NjUzNmY0ODNmMzNlYWRiYzFiMmM1ZGY=
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