Obama Administration Loses Effort To Block Injunction of Don’t Ask Don’t Tell — Announces Appeal To Reverse Victory Over DADT

Just days after the Obama Adminstration announced that it would appeal a historic victory in favor of same-sex marriage in Massachusetts, the Administration is now appealing an equally historic victory over the Don’t Ask, Don’t Tell policy. U.S. District Judge Virginia Phillips refused demands by the Obama Administration that she rescind the national injunction against the policy. Now it has announced that, while it has had to suspend further discharges of gay personnel, it will appeal the decision to be able to resume such discharges.

Let us be clear on this point. The Administration is not required to appeal this decision. This is a discretionary decision. Moreover, the Administration did not have to oppose the injunction. It could have taken an appeal and allowed the injunction to stand. Once again, it is taking actions that appear in direct conflict with the President’s insistence that he opposes DADT. If DADT is discriminatory, why would the President be fighting to hard to resume discharges and preserve the policy? Would the Administration fight to preserve a racial or gender discriminatory policy? If the President believes that the Constitution does not protect against discrimination against gays, he should state so clearly. If he is opposed to the law, he also has wide discretion on when to enforce such laws. Only recently did the Defense Department impose a rule limiting, for example, the use of third-party snitches.

Any duty to defend the law was satisfied at the trial level, though it has been argued that the Justice Department should at least ask for a review of such a decision. I will note that when I had the Elizabeth Morgan law struck down before the D.C. Circuit, the Administration at that time decided not only not to seek review from the Supreme Court, it did not even ask for reconsideration before the D.C. Circuit or an en banc review. While members wanted to defend the law, the Administration invoked its discretion not to ask for review. (It had prevailed in the trial court so this was the first ruling striking down the law). In that case, the court had handed down a rare finding of a bill of attainder — something that many in Congress probably wanted reviewed due to its obvious importance in later challenges of federal laws.

More importantly, even if he feels a need to appeal as a general policy as part of his duty as the head of the Executive Branch, why oppose the injunction in the interim? Finally, the Administration argued in the Witt case that courts should not allow gay military personnel to show that they are not individually threats to good order and discipline. The Administration insisted that the courts should accept the military’s word that all openly gay and lesbian personnel are threats. It did not have to adopt such a position and could have assisted in a major advance (ultimately ordered by the Ninth Circuit over its objections) that required individual proof of these claims. Thus, if it really opposed DADT, why not adopt a moderate position that allowed a citizen to present evidence in her own defense that she was not a threat to good order and discipline. What the judge found in that case was that, once able to look at her as an individual, it was DADT that was the threat to good order and discipline in her unit.

The Obama Administration’s efforts to preserve DADT and to reverse gains on same-sex marriage occurs at the same time wen it has successfully sought a review by the Supreme Court of a lower court ruling against former Attorney General John Ashcroft. The Administration is arguing that Ashcroft had absolute immunity to use the material witness law to round up Muslim men and hold them without any intention of actually using them as witnesses. Now to keep you up to date, Obama has previously (1) barred investigations in torture and war crimes by the Bush Administration; (2) refused to prosecute people who tortured detainees; (3) refused to discipline attorneys responsible for the program; (4) refused to prosecute high level officials who ordered torture; (5) successfully sought to dismiss lawsuits seeking review of cases for torture victims; and now (6) seeks to bar any civil liability for officials in ordering abuses (including arbitrary detention and abusive confinement). I discussed this issue this week on Countdown. I must confess not just disappoint but disgust with this line of cases, as I did on the program.

What is fascinating is that the Democrats appear likely to lose significant seats this election and possibly control of the House. The Administration made a cynical calculation in these cases to oppose fundamental principles in favor of transient politics. The result is that they could not be more unpopular. If the President had simply tried to fight for principle, he would be in no worse a position in the polls but would have stood for something. For civil libertarians, President Obama now ranks with one of the worst presidents in our history and virtually indistinguishable in these cases from his predecessor. For all of those Democrats in Congress begging for support, I will simply add that only a handful of these members publicly denounced the President for these actions and policies. Even with these appeals, there has been virtual silence from Democratic leaders or members.

Source: Yahoo

Jonathan Turley

86 thoughts on “Obama Administration Loses Effort To Block Injunction of Don’t Ask Don’t Tell — Announces Appeal To Reverse Victory Over DADT

  1. Dirty, ugly politics as usual. I supprted Obama. I.m disappointed in his lack of guts. I had hoped for better, but he sold out for a perceived benefit that will not come. Another disgusting example of a lack of moral compass.

  2. Follow the money. Who gains when soldiers can be blackmailed? Maybe there are problems with the military that we don’t even know of — kickbacks on contracts for instance and maintaining a law where soldiers can be threatened with loss of their employment, pension and benefits is helpful to them.

    It is strange that we elected Obama on the basis that he had been a constitutional law professor but under Obama the government advocates imprisoning people on the basis of who they are — gay, pro se, Moslem etc. without having to prove that a crime was committed and the person intentionally committed it. With our third world access to justice, how long before the government expands its incarceration programs? My pro se appeal of DOJ imprisonment of me without a criminal charge for the stated reason of controlling the outcome of my 3rd party lawsuit was dismissed by the D of Columbia Court of Appeals –they ruled that Prisoner Tracking System records don’t require a criminal justice purpose in order to be exempt from the Privacy Act and that DOJ exempted the records within systems of records from the Privacy Act simply by publishing them in the Federal Register.

  3. I unfortunately believe that the decision to allow openly gay citizens to join the military at this juncture is politically motivated. It pains me to say that. The Pentagon and the President said that they wanted to have a deliberate process to make a recommendation on DADT which was to come in December; bad press on their appeal came a few weeks before the elections.

    My guess is that they haven’t really changed any policies related to DADT once you’re in the military. If one engages in “homosexual behavior” can they still be discharged if they enlisted and told the recruiter that they were gay?

  4. This has the stink of political maneuvering … I suppose it matters to politicians who gets credit for ending DADT but as far as I’m concerned, they all waited too long … “He who hesitates is lost.”

  5. And the administration wonders why there is a voter apathy,You or should I say that I feel there are two different people in charge.

  6. Obama lied to us, and keeps lying to us. This guy is a complete con. This is what we get when we continually elect liars, and continually take the lesser of two evils.

  7. This is a croc…but they have to pander to the voters that they hope will vote for them…swing voters….while counting on the base to stay loyal….Did I ever say that I voted for Nader? Guess, he just had a knack of pissing people off by telling it the way he saw it…

    When we wake up will we still be in Kansas…….Auntie Em….Auntie Em….there was this witch……and then these flying monkeys…and then that….and then …I guess, I learned that all of the power lies within…oh thank you Auntie Em…..

  8. mccain filibuster dadt I don’t know about that Tony. McCain picked Palin and opened the door for O’Donnell. Angle, Brewer, etc. There are more differences than you care to explore. Using your logic I guess you would tell us that Obama and Huckabee are the same if Huckabee instead of Palin is the republican nominee. Are you working with one of the voter suppression groups that have popped up?

  9. I’m not defending Obama–just posting the following excerpt from a WAPO article to show John McCain’s position reversal on the DADT issue.

    From The Washington Post (2/3/2010)
    McCain appears to shift on ‘don’t ask, don’t tell’
    By Michael D. Shear
    http://www.washingtonpost.com/wp-dyn/content/article/2010/02/02/AR2010020202588.html

    Excerpt:
    Three years ago, Sen. John McCain (R-Ariz.) was pretty clear about his stand on the military’s “don’t ask, don’t tell” policy.

    A former war hero, McCain said he would support ending the ban once the military’s top brass told him that they agreed with the change.

    “The day that the leadership of the military comes to me and says, ‘Senator, we ought to change the policy,’ then I think we ought to consider seriously changing it,” McCain said in October 2006 to an audience of Iowa State University students.

    That day arrived Tuesday, with Defense Secretary Robert M. Gates and Joint Chiefs Chairman Mike Mullen testifying to senators after President Obama’s announcement that he would seek a congressional repeal of the 15-year-old policy

    Mullen called repealing the policy, which bans openly gay men and lesbians from serving, “the right thing to do” and said he was personally troubled by effectively forcing service members to “lie about who they are in order to defend their fellow citizens.”

    Gates told the Armed Services Committee, “I fully support the president’s decision.”

    In response, McCain declared himself “disappointed” in the testimony. “At this moment of immense hardship for our armed services, we should not be seeking to overturn the ‘don’t ask, don’t tell’ policy,” he said bluntly, before describing it as “imperfect but effective.”

  10. I am not defending Obama either, Elaine. I was only responding to Tony’s assertion that there was no difference.

  11. “In response, McCain declared himself “disappointed” in the testimony. ‘At this moment of immense hardship for our armed services, we should not be seeking to overturn the ‘don’t ask, don’t tell’ policy,’ he said bluntly, before describing it as ‘imperfect but effective.'”

    Effective at what exactly, John? Bolstering homophobia? Keeping citizens willing to serve in this dubious “war” for Bush’s oil profits from doing so out of fear of oppression at a time when recruitment numbers are at a low? Covering your sorry ass with the “We Hate Anything We Don’t Understand” tea baggers? Effective at what exactly, John?

  12. I don’t understand Obama at all — it seems that he wants us to lose our rights. I wrote him a check, voted for him, and campaigned for him and now I feel abandoned without my rights.

  13. I just want to know where Judge Phillips acquired the authority to permanently enjoin the U.S. Armed Forces and to invalidate an Act of Congress.

    Has anyone ever read the Massachusetts Constitution of 1780?
    “Art. XX. The power of suspending the laws, or the execution of the laws, ought never to be exercised but by the legislature, or by authority derived from it, to be exercised in such particular cases only as the legislature shall expressly provide for.”

    Does any statute exist in which the District Court can permanently enjoin another branch of government?

    (I agree with repealing DADT, but I don’t agree with letting a District Court Judge permanently suspend laws.)

  14. The Raven,

    The power to adjudicate cases arising under the Constitution is found in Art. III, sec. 2 as modified by the 11th Amendment.

  15. DOJ, DOD and other government agencies suspend and ignore laws all the time. Just look at the reporting requirements of the Privacy Act and then ask for the agency reports.

    The Courts do whatever they want to. For instance, they issue NO PRO SE orders without complying with Rule 65. They don’t have a statutory authority, they don’t require bonds, they don’t require motions, they don’t require motion hearings, and they don’t require a document that doesn’t incorporate a complaint or other document. The Courts claim statute – less injunctive authority against pro se litigants so why not against the government?

  16. I recall hearing an Iraq War veteran telling Rachel Maddow something very close to the following: “He (Obama) needs to know that we can be his best friends or his worst enemies.”

    I was bothered by the statement then and am thinking about it again this morning. There are some very strange things going on these days…

  17. The DHS has suspended enforcement of the widow’s penalty. Obama has a chance to lead and, per usual has abdicated it in exchange for pandering to people who absolutely will not vote for him or his party. The DoJ might have a basic obligation to appeal the case just so true opponents of the law have a forum for amicus briefs and the like. But fighting discharges is way more than necessary.

  18. He was just confused with slang SWMOM

    Whats up dog, Waz happenin, aint nuttin to it, you iaight, yea it’s all good. Bet, Ay Ay tell yo mamma I sed hello. Nigga u need to stay off my momma. Oh ok den

  19. SAN DIEGO (AP) – At least three service members discharged for being gay have begun the process to re-enlist after the Pentagon directed the military to accept openly gay recruits for the first time in the nation’s history.

    The top-level guidance issued to recruiting commands Tuesday marked a significant change in an institution long resistant and sometimes hostile to gays.

    “Gay people have been fighting for equality in the military since the 1960s,” said Aaron Belkin, executive director of the Palm Center, a think tank on gays and the military at the University of California Santa Barbara. “It took a lot to get to this day.”

    The movement to overturn the military’s “don’t ask, don’t tell” policy gained speed when President Barack Obama campaigned on its repeal. The effort stalled in Congress this fall and found new life last month when a federal judge in California declared it unconstitutional.

    http://apnews.myway.com/article/20101020/D9IVB2I80.html

  20. I can’t understand how we could have a president who was a law professor, and 71 of 100 senators with law degrees, and they haven’t gotten any handle on procedural due process issues in the federal courts.

    If I was on the Senate Judiciary Committee, I would ask the Supreme Court to come in and answer public complaints about administration of the courts.

  21. Buddha is Laughing,

    I appreciate your attempt to answer my question, but I am looking for something more specific.

    As we all know, the Armed Forces are under control of the Executive. Therefore, when a District Court enjoins the Armed Forces, that court is exercising control over the Executive. While I have no problem with permitting the court to temporarily enjoin an agency from following a law that would violate the rights of the party before them, I do have a problem with the District Court permanently enjoining the U.S. Armed Forces, and by direct connection, the Executive.

    As John Adams inscribed in the Massachusetts Constitution of 1780, the people, are ever entitled to demand of their magistrates an “exact and constant observance” of the principles of the Constitution, above all, to exercise no powers not granted. When questioned about the source of the District Court’s power, the court (or anyone who support the exercise of that power) should be able to identify the source. The burden is on the claimant to provide the source of their power. Failing to do so, it is a usurpation.

  22. JT: “Now to keep you up to date, Obama has previously (1) barred investigations in torture and war crimes by the Bush Administration; (2) refused to prosecute people who tortured detainees; (3) refused to discipline attorneys responsible for the program; (4) refused to prosecute high level officials who ordered torture; (5) successfully sought to dismiss lawsuits seeking review of cases for torture victims; and now (6) seeks to bar any civil liability for officials in ordering abuses (including arbitrary detention and abusive confinement).”

    Buddha,

    Would you mind completing this list as best as you can?

    Here’s my stab at it:

    Defending warrantless wiretapping (effectively rendering the 4th amendment repealed);

    Suspending habeas corpus sans insurrection or rebellion;

    Issuing executive assassination orders; raising himself to the level of absolute monarch.

    What am I missing here?

  23. Raven – DADT was part of a Defense Authorization bill, it was a law passed by congress. Cases involving questions of federal law are argued at the US District Court level … as this was. DADT is not an executive order or the whim of the executive acting as commander in chief (items which the courts have less obvious jurisdiction over) but a Congressional law.

    Courts are the authority to resolve questions of Congressionally passed law and invalidate acts of Congress if they are unconstitutional. Absolutely.

  24. @Bob,Esq: It is hard to imagine a Republican could have been any worse than Obama on civil rights. Exactly the same, perhaps, but worse? What is left, after Presidentially decreed assassinations?

  25. Defending warrantless wiretapping (effectively rendering the 4th amendment repealed);

    An Obama administration task force that includes officials from the Justice and Commerce Departments, the F.B.I. and other agencies recently began working on draft legislation to strengthen and expand the Communications Assistance to Law Enforcement Act, a 1994 law that says telephone and broadband companies must design their services so that they can begin conducting surveillance of a target immediately after being presented with a court order.

    There is not yet agreement over the details, according to officials familiar with the deliberations, but they said the administration intends to submit a package to Congress next year.

    Albert Gidari Jr., a lawyer who represents telecommunications firms, said corporations were likely to object to increased government intervention in the design or launch of services. Such a change, he said, could have major repercussions for industry innovation, costs and competitiveness.

    “The government’s answer is ‘don’t deploy the new services — wait until the government catches up,’ ” Mr. Gidari said. “But that’s not how it works. Too many services develop too quickly, and there are just too many players in this now.”

  26. Sriram,

    I don’t have a problem with SCOTUS (the Court whose decisions are controlling upon all other courts) exercising the power of judicial review. I do have a problem with the District Court exercising the same power.

    If judicial review is an implied power, as so many of today’s constitutional scholars proclaim, then why would such eminent jurists as John Marshall and Joseph Story have dreaded the possible repeal of the twenty-fifth section?

  27. It’s both fascinating and sad to watch as man bites the hand of a group that worked so hard and spent so much money helping get him elected….after the past two years I often wonder who is this person we elected president….

  28. Sriram,

    I’m not as much concerned with whether it is the Executive or the Legislature as I am where the District Court acquired the power reserved for the Legislature.

    Even if we are to consider the Supreme Court to have an implied power, I don’t see how that same power got placed in the hands of the District Court.

  29. Nine Stories The Press Is Underreporting — Fraud, Fraud And More Fraud by Dan Froomkin

    10-20-10 11:28 AM

    http://www.huffingtonpost.com/2010/10/20/nine-stories-the-media-is_n_769620.html

    “What we are seeing all around us are the continued effects of a vast criminal enterprise that has never been brought to account, employing a process that, as University of Texas economist James Galbraith explains, involved the equivalent of counterfeiting, laundering and fencing.”

    I’m seeing a much different side of this “criminal enterprise.” I know this. We’re eating ourselves up from within.

  30. Bob,

    I think you covered all the low spots unless you want to count the various things the Obama Administration did to run flack and protect the interests of BP over those of American citizens. But that’s chump tyranny compared to the assassination and aiding and abetting after the fact of Bush war crimes by failing to prosecute.

    The Raven,

    SCOTUS could not as a practical matter hear every case as a case of first impression. It just doesn’t make logistical sense. The same Art. III provisions that empower SCOTUS empower the lower judiciary as well, including the Federal bench, by providing that SCOTUS is primarily an appellate authority that can only exercise original jurisdiction in limited circumstances thus necessitating a lower court to appeal from in other matters of Federal jurisdiction, i.e. the Federal bench which does hear original cases where there is proper Federal jurisdiction which does not fall under the SCOTUS exceptions. It may not be as clear a pronouncement as you like, but the function is in there as a matter of operation.

  31. Hold Your Government to Account And Go To Jail by Jesselyn Radackon October 20, 2010

    http://www.whistleblower.org/blog/31-2010/798-hold-your-government-to-account-and-go-to-jail

    “Woodward’s book includes disclosures such as:

    the code names of previously unknown National Security Agency programs, the existence of a clandestine paramilitary army run by the CIA in Afghanistan, and details of a secret Chinese cyberpenetration of Obama and John McCain campaign computers.”

    We have something akin to “a clandestine paramilitary army” operating domestially, but who would believe it…

  32. Gov’t seeks stay of ‘Don’t ask, don’t tell’ ruling

    By PETE YOST
    The Associated Press
    Wednesday, October 20, 2010; 12:21 PM

    WASHINGTON — The Obama administration on Wednesday asked a federal appeals court to immediately suspend a judge’s ruling that overturned the military’s “don’t ask, don’t tell” policy on gays.

    The government says it wants the U.S. Court of Appeals for the 9th Circuit in San Francisco to take action on Wednesday. The federal government is preparing arguments for the appeals court on why the ruling on “don’t ask, don’t tell” should be suspended while the case is appealed.

    http://www.washingtonpost.com/wp-dyn/content/article/2010/10/20/AR2010102003022.html

  33. @TheRaven – I’ve always been under the impression that one of the most important roles of the Federal Courts is to determine the constitutionality of laws. Just because Congress passes a law does not mean that it is therefore automatically constitutional and should be enforced…

    If the Congress suddenly passed a law stating that only people of a certain race could join the military, the Federal District Court could rule that the law is unconstitutional… something I presume you would support them doing.

    Similarly, as the Commander in Chief, the President has the authority to just bypass the legislature all together if he believes a policy within the military is wrong and unconstitutional and he can sign an executive order ending the policy of DADT – just like President Truman had the authority to sign executive order 9981 that established equal treatment for all military servicemembers regardless of race, religion or national origin. When Truman signed that Executive Order, virtually all of the military leaders stood in opposition to him and claimed many of the same arguments the administration is making today such as weakening the armed forces, cost of integration, and so on down the line.

  34. Buddha Is Laughing,

    I’m looking for any pronouncement whatsoever. I know that review by the Judiciary was discussed at the Constitutional Convention, and that those attending the convention decided not to grant it as a power stated in the Constitution. I can only find on State Convention where it was even discussed (Connecticut). And I can find where the person who brought it up at the Connecticut Convention authored the Act in which the power was granted specifically to SCOTUS. I can even find where John Marshall and Joseph Story dreaded the repeal of such power.

    If Joseph Story truly believed that the Supreme Court (let alone a lower court) derived the power of judicial review from some implied provision of the Constitution, I doubt he would have held this belief regarding repeal of the twenty-fifth section.

    “If it should prevail, (of which I have not any expectation,) it would deprive the Supreme Court of the power to revise the decisions of the State Courts and State Legislatures, in all cases in which they were repugnant to the Constitution of the United States. So that all laws passed, and all decisions made, however destructive to the National Government, would be utterly without redress.”

    An implied power can be repealed? And Joseph Story recognized that an implied power could be repealed? And John Marshall expected that the power would be repealed? I have trouble finding that to be a logical conclusion.

    It was 74 years before SCOTUS relied on Marbury as the source of their power. I’m not sure when the first time a judge of the District Court decided that he also had that power. (If anyone knows the first time a District Court Judge exercised the power of judicial review please let me know.)

    I firmly believe that a power not granted by the Constitution nor by statute is not a power exercised in accordance with the Constitution. I do believe that Congress can provide any federal court with the power of judicial review. The question is; Did they?

  35. Six,

    “Similarly, as the Commander in Chief, the President has the authority to just bypass the legislature all together if he believes a policy within the military is wrong and unconstitutional and he can sign an executive order ending the policy of DADT”

    I don’t believe the President has the power to invalidate an Act of Congress with which he disagrees. To the best of my knowledge, that is not within the discretionary powers of the President.

    I might agree with the President’s reason for doing something, but that does not mean it is a constitutional act.

  36. If DADT goes against Obama all the way up to the Supreme Court, he will merely claim that that was what he had wanted all along, the duplicitous man. BTW, Professor Turley, I hope you will also cover the Obama administration’s siding with John Ashcroft in the al-Kidd case. I don’t watch TV and missed your comments on Keith Olberman.

  37. he may or may not have the ability to sign an order reversing Congressional law. That is debatable. He has the right to suspend the firings – that is completely within his purview. He does not have to shrug his shoulders and actively defend the right of the military to out and fire gay people.

    Also, the 25th section of the Judiciary Act pertained the the Federal Court’s ability to review STATE COURT decisions. The DADT decision was entirely a federal matter. The district court was federal jurisdiction. The repeal of the 25th section of the Judiciary Act would mean that states could make their own decisions willy nilly without federal review – which means for instance, states could individually bring some newly named version of slavery back if state legislatures and state courts thought it was ok.

  38. “he may or may not have the ability to sign an order reversing Congressional law. That is debatable.”

    Then, I guess, all things are to be considered “debatable”.

    You provided an example of President Truman changing “policy” by Executive Order. Policy is not derived from an Act of Congress. To confuse the two serves no purpose. The President has the discretionary power to change policy.

    Even if we are to accept a view that the twenty-fifth section only applied to courts created by the individual states, and not to encompass all the courts which reside in the states, it would still indicate that (a) Article III did not imply or grant judicial review to SCOTUS; or (b) the twenty-fifth section was redundant (which would make the view taken by Marshall and Story ridiculous). There is no indication that anyone found the twenty-fith section to be redundant.

    My position is that the twenty-fifth section granted SCOTUS appellate jurisdiction to interpret the validity of any law created by the state or federal legislature. It was a power granted by the Legislature, and both Marshall and Story recognized that it could be removed.

  39. If any of you Obama supporters continue to vote for him in 2 years–after what he has done–then you are clearly complicit in his misdeeds.

  40. @The Raven: What Obama DOES have the Constitutional authority to do, unilaterally, is pardon all DADT targets. He can pardon any citizen for anything, if a DADT investigation determines a soldier should be discharged, Obama can nullify that decisions.

    As Commander in Chief, Obama can exercise the power of the budget as well. He can defund DADT investigations and put them at lower priority than gym locker thefts and the investigation of missing office supplies. Thus investigating a DADT charge when there are unsolved gym locker crimes is a direct violation of an order by the CiC that can result in a court martial. Unless constrained by specific law, Obama chooses how military resources, including investigators, are to be utilized.

    As Commander in Chief, Obama has invoked “retention of forces” in wartime as an excuse to delay the prosecution of DADT offenders while they are in combat; the same rationale can be employed when they are stateside — We are at “war” and aren’t discharging anybody without severe cause.

    There are several Constitutional means by which a President can nullify the DADT law.

  41. FFLEO

    “Timing is everything.” – W. Shakespeare

    Mr. Obama knew if he was to pass national health care legislation, while fighting two wars and a near depression, it would have to be in the first two years.

    Within the next two years we will see if Mr. Obama is content to be a one term president willing to buck Congress to restore the rule of law, or if he is one of the worst ever having allowed himself to by rolled by Defense, Big Business, and Congress all within one term.

    He will either be running for 2012 or will be the most veto prone President ever.

  42. @Kay: I don’t know what you are talking about, “5005.” In any case, what Obama can do is **pardon** people for crimes, you would have to ask Buddha or Bob what the legal effects of a pardon are (besides nullifying any punishment for the crime.)

    I believe the President’s power is limited to Federal Crimes; so me saying “anybody for anything” is likely inaccurate. But he does have the power in regard to a federal law like DADT.

    Gerald Ford pardoned Nixon for any crimes Nixon **might** have committed. Ron Paul believed the President had the Constitutional authority to issue a blanket pardon to all imprisoned non-violent drug offenders whose only crime was posession, use or sale of a controlled substance.

    I don’t know if a contempt charge in a federal court is a federal crime or not; if it is Obama can pardon it.

  43. Here’s another list Bob.

    THE OBAMA ADMINISTRATION’S RECORD FROM THE OUTRAGEOUS TO THE ABSURD

    $26.2 Trillion: Projected Federal Debt In 2020 Due To Obama’s Binge Spending. (OMB, 7/23/10)

    $13.6 Trillion: Current National Debt. (U.S. Treasury Department, Accessed 10/19/10)

    $8.5 Trillion: Cumulative Deficits Caused By President Obama’s Proposed Budget, FY2011-2020. (OMB, 7/23/10)

    $3.9 Trillion: Total Cost Of The Democrats’ Tax Hike To Taxpayers. (Joint Committee On Taxation, 8/6/10)

    $3.0 Trillion: Amount Added To The National Debt Since Obama Took Office. (U.S. Treasury Department, Accessed 10/19/10)

    $2.5 Trillion: True Cost Of ObamaCare Once Fully Implemented. (Sen. Max Baucus, Floor Remarks, 12/2/09)

    $1.42 Trillion: Federal Budget Deficit For FY2009 – Highest In U.S. History. (Congressional Budget Office, 10/7/10)

    $1.29 Trillion: Federal Budget Deficit For FY2010 – Second Highest In U.S. History. (Congressional Budget Office, 10/7/10)

    $868.4 Billion: American Debt Held By China. (U.S. Treasury Department, Accessed 10/19/10)

    $831 Billion: Net Interest Payment On Our National Debt In 2020 Due To Obama’s Budget. (OMB, 7/23/10)

    $814 Billion: Price Tag Of Obama’s Failed Stimulus. (Bloomberg, 8/20/10)

    $575 Billion: Amount Of Medicare Cuts In ObamaCare. (CMS Chief Actuary Richard S. Foster, Memo, 4/22/10)

    $569.2 Billion: Amount Of Taxes In ObamaCare. (Letter to Speaker Nancy Pelosi, 3/18/10)

    $10 Billion: The Cost Of The Teacher Union Bailout. (The Washington Post, 10/8/10)

    $54 Million: Amount Of Stimulus Funds Spent On A Napa Valley Wine Train. (ABC News’ “Good Morning America,” 2/2/10)

    41.8 Million: Number Of Americans Receiving Food Stamps. (Bloomberg, 10/5/10)

    40 Million: Number Of Businesses That Will Be Burdened By The Onerous IRS 1099 Requirement. (The Washington Post, 8/29/10)

    $18 Million: Cost Of The Stimulus Website Recovery.org. (ABC News’ “The Note“ Blog, 7/8/09)

    14.8 Million: Unemployed Americans. (Bureau of Labor Statistics, 10/8/10)

    9.5 Million: Americans Working Part-Time For Economic Reasons. (Bureau of Labor Statistics, 10/8/10)

    6.1 Million: Americans Unemployed For Longer Than 27 Weeks. (Bureau of Labor Statistics, 10/8/10)

    5.4 Million: Number Of Properties Receiving Foreclosure Filings Since Obama Took Office. (RealtyTrac, Accessed 10/19/10)

    3.8 Million: Increase In the Number Of People Who Were In Poverty In 2009 Over 2008. (NPR, 9/16/10)

    2.6 Million: Jobs Lost Since Stimulus Was Passed. (Bureau of Labor Statistics, 10/8/10)

    2.3 Million: Private Sector Jobs Lost Since Stimulus Was Passed. (Bureau of Labor Statistics, 10/8/10)

    1.2 Million: Americans That Have Given Up Looking For Work. (Bureau of Labor Statistics, 10/8/10)

    964,900: Number Of Jobs That Could Be Lost Per Year Under Cap And Trade. (Tax Foundation, 3/09)

    89,000: The Number Of Stimulus Checks Sent to Dead Or Incarcerated People. (The Wall Street Journal’s Washington Wire” Blog, 10/7/10)

    $43,000: Your Share Of The National Debt. (“The Daily History Of The Debt Results,” TreasuryDirect, Accessed 10/19/10; U.S. Census Bureau, http://www.census.gov, Accessed 10/19/10)

    23,000: The Number Of Jobs Obama Knew His Drilling Moratorium Could Kill. (The Wall Street Journal, 8/21/10)

    22,000: Number Of Seniors In MA, NH And ME That Will Lose Their Medicare Advantage Plans As A Result Of ObamaCare. (The Boston Globe, 9/28/10)

    $1,761: Cost To American Families Per Year As A Result Of Cap And Trade. (CBS News’ “Taking Liberties” Blog, 9/16/09)

    $1,540: The Amount Of The Tax Hike The Average Middle Class Family Will See As A Result Of The Dems’ Tax Hike. (Tax Foundation, 8/1/10)

    1099: The IRS Form Every Business Will Have To File After Doing $600 Worth Of Business With A Vendor. (CNNMoney.com, 5/5/10)

    100: Percent Of GDP That Our National Debt Will Rise To In 2012. (Office Of Management And Budget, 7/23/10)

    83: Number Of Fundraisers Obama Has Attended As Of 10/12/10. (CBS News’ Mark Knoller’s Twitter Feed, Accessed 10/19/10; CBS News, 8/16/10)

    80: Percent Of Small Businesses That Could Be Forced To Change Health Care Plans As A Result Of ObamaCare. (The Washington Post, 6/15/10)

    79: Percent Of Stimulus Funds For Wind, Solar And Geothermal Energy Projects That Went To Foreign Firms. (Investigating Reporting Workshop/ABC’s World News Tonight/Watchdog Institute, 2/8/10)

    68: Percent Of Americans Who Think The Stimulus Was A Waste. (The Hill’s “Briefing Room” Blog, 10/5/10)

    60: The Percent Of Young Voters Who Are “More Cynical About Politics” Now Than When Obama Was Elected. (The Huffington Post, 9/15/10)

    58: Percent Of Ohioans Who Say Obama’s Frequent Visits To The State Make No Difference In How They’ll Vote. (The Hill, 10/19/10)

    53: Rounds Of Golf Played By President Obama Since Taking Office. (CBS News’ Mark Knoller’s Twitter Feed, Accessed 10/19/10; CBS News’ Mark Knoller’s Twitter Feed, Accessed 10/19/10 )

    49: Visits To The White House By Andy Stern, Former President Of SEIU. (WhiteHouse.gov, Accessed 10/19/10)

    37: Number Of Town Halls Obama Has Done Since Taking Office. (CBS News’ Mark Knoller’s Twitter Feed, Accessed 10/19/10)

    33.3: Average Number Of Weeks It Takes An Unemployed Worker To Find A Job. (Bureau of Labor Statistics, 10/8/10)

    30: Number Of Waivers Granted To Businesses So That The White House Could Avoid Admitting ObamaCare Was Making People Lose Their Health Care Plans. (USA Today, 10/7/10)

    27: Percent Increase In Premiums By Some Insurers In Colorado As A Result Of ObamaCare. (The Denver Post, 9/20/10)

    25: DVDs Given To The UK’s Prime Minister Gordon Brown On His First Visit. (The Daily Mail (UK), 3/9/10)

    20: Straight Months That Food Stamp Participation Has Hit A Record. (Bloomberg, 10/5/10)

    17.1: Percent Of Americans Either Unemployed Or Working Part-Time For Economic Reasons. (Bureau of Labor Statistics, 10/8/10)

    14: Straight Months With Unemployment Above 9.5%. (Bureau Of Labor Statistics, 10/8/10)

    9: Number Of Vacations Taken By President Obama. (CBS News, 8/19/10)

    4: Out Of 10 Likely Voters Who Once Backed Obama But Are Less Supportive Or No Longer Support Obama. (Bloomberg, 10/12/10)

    2: Place In The Line Of Succession That Joe Biden Believes He Is In (Hint: He’s #1). (CBS News’ Mark Knoller’s Twitter Feed, Accessed 10/19/10)

    2: Visits To The White House By Actor George Clooney. (E! Online, 10/12/10)

    1: Number Of White House Investigations. (CBS News, 10/6/10)

    1: Teacher Union Bailout To Motivate Teacher Unions For Midterm Elections. (The Washington Post, 10/8/10)

    0: Other People Obama Will Have Left To Blame For His Failures In 2012. (The American People, 11/6/12)

    Read more: http://www.gop.com/index.php/briefing/comments/obama_by_the_numbers#ixzz12vnYknLF

  44. Professor Turley:

    Isn’t it true that any Executive Branch agency, e.g. The Department of Defense, has the discretion via policy, not to enforce a law (e.g., DADT law)?

    Over a long career in GOVT, I saw Interior do this all the time. The Ninth Circuit upheld this “discretion” in once instance:

    829 F.2nd 933 (9th Cir. 1987).

  45. It’s just all about Dick. Big Dick’s, little Dick’s, it’s just how its packaged. Just ask Bdaman, he like dick, but he say dadt.

  46. @Bdaman: Big numbers don’t mean anything out of context.

    Even at 26.2T debt, the US Government can borrow money at about 2%.
    The payment on such a debt would be about $.52T (520B). The current M2 money supply (money in circulation) is about $8.7T.
    (see here: http://www.federalreserve.gov/releases/H6/Current/)

    If the government prints $520B to pay its interest on the debt, that will cause 6% inflation. That is a pretty manageable debt.

    Also, the majority of that debt was caused by a Republican initiated “War on Terror” (continued by Obama), and the majority of the deficit is what the public seems to want: Military might, Social Security and Medicare. 6% inflation isn’t great but it isn’t too much to pay.

    In addition to that, inflation is primarily a tax on the cash assets of the rich. It can cause price hardship on the lowest wage earners, but we can alleviate that with a boost in the minimum wage (or higher demands from workers). In the long term, inflation reduces the purchasing value of cash, and for most middle class earners, their net worth is tied up in hard assets; like a house, cars, equipment and furniture. Most are also in debt: Credit card debt, mortgage and loan debt.

    Inflation is a double-whammy on the rich, because within a year or two it means the middle class has to work fewer hours and devote a smaller percentage of their pay to service their debts, AND it reduces the purchasing power of cash assets held by the rich. Not income. Assets. Part of those assets are … debt owed by the middle class; the lenders tend to be the rich.

    Essentially these are the same thing; inflation reduces the purchasing power of both cash and debt (when it gets repayed and becomes cash). Both Republicans and Democrats embrace national debt and deficit spending because it works great politically if they get to direct the flow of money. It is really only a problem for us (progressives) when the rich get fed up and want to reduce the debt by cutting services instead of printing money, what they are opposed to *really* is printing money and causing inflation that reduces the purchasing value of the debt they own and their cash assets.

  47. FFLEO This has turned into quite a republican operation on this blog. It sounds like “red state or “free republic”. I will probably vote for Obama over y’all’s Palin and Huckabee. Some of you voted for Obama but you are really republicans. I think you supported the professor in the “Citizens versus United” decision. I am not responsible for Obama or any other politician nor am I complicit. I wish Mike S was here to set you folks straight.

  48. Swarthmore mom

    4: Out Of 10 Likely Voters Who Once Backed Obama But Are Less Supportive Or No Longer Support Obama. (Bloomberg, 10/12/10)

    With your help we can move it to 5 out of 10

    Just curious, what flavor was that Kool-Aid.

  49. Tony C. where can I send my donation? seems like you got it all figured out. Tony C for president :)

    P.S. don’t let Buddha bother you. 1st and foremost he be one smart sumbich but he ain’t gots no teeth so his bark is worse than his bite.

    You da man Buddha, you know I would love you but dens dat would make me an Idolotrist with my wife. She wouldn’t like dat.

    Comin Honey

  50. @Bdaman: I’m not pushing it, I am just sayin’. A lot of conservatives that have been convinced inflation and debt are bogeymen may not realize they are working against their own financial interests, and in favor of the financial interests of the rich that want to soak them. Most (or all) debt payments of the USA are just printed (or really, just numbers typed into a computer, no physical printing is necessary). We’ll never be Greece, because Greece isn’t allowed to just print more Euros.

    Greek debt is real, ours just represents a future tax on the assets of the rich which they wish to avoid.

  51. Dear Tony

    Thank you for your comment. The Federal Rules of Criminal Procedure Rule 42 were amended and define criminal contempt. They allow summary disposition if you disrupt a court room and the judge writes an order describing what you did. I didn’t do that. Anything else is supposed to be prosecuted as criminal contempt and probably means something like threatening to shoot the judge or bribing jurors. All those also have names of other crimes such as making threatening statements or obstruction of justice.

    In the Administrative Procedure Act it says that all procedure involving the government must be published. My appeal, which was dismissed yesterday, pointed out that the APA says a U.S. citizen can’t be disadvantaged by their government using unpublished procedure. That of course has applications to the discussion of military life.

  52. @Kay: If you believe your civil rights have been violated, I’d call the ACLU and try to get some advice, or at least a referral to a civil rights attorney that has done some pro bono work for them. You might be able to sue for damages, for all I know.

    That isn’t legal advice, I am not an attorney. I have a small amount of knowledge on patents and contracts, and typically just enough to know when I should see my lawyer!

    Good luck with your case.

  53. We’ll never be Greece

    How bout France or the UK

    Chancellor George Osborne has unveiled the biggest UK spending cuts for decades, with welfare, councils and police budgets all hit.

    The pension age will rise sooner than expected, some incapacity benefits will be time limited and other money clawed back through changes to tax credits and housing benefit.

    Up to 500,000 public sector jobs could go by 2014-15 as a result of the cuts programme, according to the Office for Budgetary Responsibility.

    http://www.bbc.co.uk/news/uk-politics-11579979

  54. Appeals Court Grants DADT Stay

    Less than 24 hours after a federal judge refused to block an injunction against “don’t ask, don’t tell,” the U.S. court of appeals for the ninth circuit has done so — at least temporarily.

    A three-judge panel with the ninth circuit ordered a stay requested by the Justice Department “temporarily in order to provide this court with an opportunity to consider fully the issues presented.” It is not clear if the ruling was unanimous or a split decision.

  55. @Bdaman: Same issue, France and the UK use the Euro, and do not have the individual authority to print more of them to pay their debts.

    However, they are like us in the respect that the rich have captured their governments; albeit I think possibly to a lesser extent than they have captured ours, but the big money is global.

    The USA can and does print money at will to pay its debts, or the interest on its debts. For a good essay on the troubles of the Euro, read George Soros (and yes, he’s making a fortune on it).

    http://www.georgesoros.com/interviews-speeches/entry/george_soros_speech_at_humboldt_university/

    We cannot end up like anybody in the EU. What we would LIKE to be, economically speaking, is Germany. The world leader in technology, the world leader in productivity, they have a robust factory system and employment, and this is primarily because their government insists upon all of these things and supports all of these things with tax policy and regulation. I don’t know all the details, but my understanding from native Germans with whom I am friendly is that is very difficult in Germany to ship jobs overseas for cheaper labor, next to impossible to cheat on your taxes, and very difficult for executives to rip off investors and pay themselves exorbitantly.

    In short, a strongly regulated market that encourages **fair** competition has produced one of the strongest economies on the planet, with a focus on producing the highest quality engineered products on the planet. I’ve heard the same unprompted advice from restaurant owners to construction workers to wet lab workers, if you can get a German-made model of some piece of equipment, BUY IT.

    Remember when that used to be us? Now we are in the remainders bin because nobody trusts us. Around the world people think US made products are shoddy, that Americans cut corners, they don’t enforce their regulations, they are only interested in profits. The criminality of our political system and the gutting of basic regulation of our businesses has consequences.

    The next time a free marketeer tells me we should let the market decide; I’ll point at Germany — The world market HAS decided, and it likes that model of regulated industry with government enforced fair play far better than it likes ours.

  56. For heaven’s sake people, Obama is just one guy. We can be a force of millions if we organized. When pointing the finger at one, there’s three pointing back at you. Change begins with each of us deciding to organize for the change we want. Waiting for the right president to be elected isn’t working.

  57. I demand equal rights for heterosexuals in the military to be able to shower and bunk with strangers they are sexually attracted to.

    Heterosexuals unite! Insist men soldiers have the right to shower with the women.

    Heh

  58. The Court of Appeals for the Ninth Circuit just granted the stay of the District Court’s injunction pending the resolution of the appeal.

    The “Administration loses” headline should have been “loses one round” in heavyweight title bout that is scheduled for 15 rounds, winding up in the Supreme Court.

  59. DADT Conflict Explained: Why Obama Administration Lawyers Fight For A DADT Policy Obama Opposes

    “WASHINGTON — President Barack Obama opposes the Pentagon’s “don’t ask, don’t tell” policy on gays in the military, so why are Obama administration lawyers in court fighting to save it?

    The answer is one that perhaps only a lawyer could love: There is a long tradition that the Justice Department defends laws adopted by Congress and signed by a president, regardless of whether the president in office likes them.

    Kinda like them laws against treason, huh? You know. The Constitutionally defined crimes the previous administration isn’t being prosecuted for by the DOJ even though the Prez is against it.

    Guess which finger your “explanation” earned?

    You two-faced, double-standard espousing Washington bastards.

  60. To take the contrarian view, perhaps Obama believes

    1. He should wait until the military’s recommendation before doing anything

    2. Repeal of DADT by Congressional action will come sooner than relying on the slog through the digestive track of a 40 foot anaconda (a/k/a appealing to the SCOTUS)

    Also, I know this case has tremendous symbolism for everyone, but she’s just a district court judge. Her injunctions have no effect (due to lack of jurisdiction) outside her own district, certainly not over the entire armed forces of the US.

  61. @Buddha: So I guess what Obama is saying is that tradition is more important than the lives or careers of soldiers, and more important than the 1st or 4th amendments to the Constitution. Apparently the tradition of Presidential immunity for all crimes is thriving as well. (But not sex crimes, those are still verboten).

  62. Yes, the silence from Obama supporters on his complete abandonment of his campaign promises cited above by Prof. Turley is deafening. On HuffPo and other blogs, they just won’t accept these FACTS.

  63. Tony,

    It’s simpler than that. It’s passing the buck to the DOJ so the White House can cater to the JCS and their stuck in the ’50’s mindset without getting their hands dirty. “It’s not our fault” followed by what will surely be a DOJ pronouncement that “the White House hasn’t indicated this is a priority.” Uh huh. More shoveling to hide what is a theocratic decision, not a military decision. Homosexuals have been in the military since there has been a military because homosexuals have been a part of society since well before we started farming. Ask Alexander the Great and the Spartans. But you can’t have a bunch of those Christian generals risk showing their pecker in the shower to someone who might not like the opposite sex! No, sir. Jesus doesn’t approve of fags killing in the name of a flag. Only heteros are allowed to kill for Jesus! If Jesus’ approval of behavior is the appropriate standard? All those homophobic generals would be working at Pep Boys instead of suckling the public nipple.

  64. Dear Tony

    I agree w your comments on Germany. They have a modern constitution that restricts the powers of the judiciary too. After the Holocaust they prohibited jailing for civil contempt.

    BIL — How do you explain the fact that 5 USC 552a requires annual privacy act reports but the agencies don’t file them? Following up w our conversation about my appeal of my Privacy Act complaint, the appeals panel dismissed my appeal as unimportant with no explanation. Judge Bates ruled at request of DOJ that DOJ can create Prisoner Tracking System records without a criminal prosecution and search for citizens without a criminal investigation. I spent about 4 months on the documents. At this point my plan is to refile my complaint based on First Amendment Retaliation and not bother going to the S.C. because I don’t think there is even a chance they will take it without an appellate opinion and I can support the complaint using 1st Amendment Retaliation now that DOJ has stated that it is their unofficial policy to jail citizens to stop them from filing Rule 60b(3) motions in a non rendering court without permission. So that leaves the precedent open for DOJ to jail homosexuals or anyone else without liability and without a criminal prosecution and it leaves precedent for the USMS to conduct searches for anyone without a criminal investigation. Great country huh?

  65. Kay,

    I’ve already said I’m not going to give you any specific legal advice further than you really need to hire an attorney.

  66. Bob,

    As a functional matter, what can take that discretion’s place? The result would be huge inefficiencies in the form of wasted prep and bench time for frivolous charges. Absent say an amendment to command the executive branch to pursue charges in narrowly defined instances, can you suggest a replacement for this flawed but requisite mechanism? Other than “get an AG who has better discretion in looking out for the common good”, of course.

  67. @Buddha: >> what can take that discretion’s place?

    I am not sure of the technicalities, but isn’t that the job of a Grand Jury? I have heard they are rubber stamps, but is there some reason we could not stop that and have citizen juries decide by vote (or prioritize by rank) prosecutions?

    Even priorities would effectively decide what does not get prosecuted; because when the D.A. runs out of time or money, the rest of the list just doesn’t get prosecuted.

  68. Buddha,

    I’m just saying that Obama could have shown a scintilla of sincerity by declining to prosecute.

    It’s not quite at the level of forcing Robert Bork to fire Archibald Cox now is it?

  69. I got a letter from Stuart Frisch, General Counsel of DOJ’s Justice Management Division last week with a DOJ report that isn’t published on the Internet. The report says that in 2006 DOJ had a Data Integrity Board consisting of Lee Lofthus, Glenn Fine, Daniel Metcalfe, and Jane Horvath. Previously DOJ had indicated that I didn’t have standing to get DOJ’s Privacy Act reports but Mr. Frisch sent one to me last week. I am just posting that here because I discussed the Privacy Act reports in the context of DADT here.

  70. Bob,

    Faking it would have been preferable.

    Tony,

    Close but no cigar. Grand juries are an independent subset of the judiciary that operate on their own initiative to investigate criminal matters and possibly instigate charges in their role as community ombudsman. They are an adjunct to the prosecutorial process (and its inherent discretion), not a substitution.

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