U.S. District Judge Virginia A. Phillips in California has found the military’s “don’t ask, don’t tell” policy to be unconstitutional under the 1st Amendment and due process clause. She has informed the Obama Administration, which is defending the policy, that she intends to issue an injunction.
While President Obama said on the campaign trail that he would get rid of DADT, he has yet to actually do it despite recent assurances. In the meantime, the Justice Department has been quietly fighting to preserve the policy in court.
The Obama Administration argued that the inclusion of gays and lesbians in the military has a “direct and deleterious effect” on the armed services.
Phillips issued an 85-page ruling that shredded such arguments — noting that the military has allowed felons to serve but not gay citizens. She refused (as is often the case with federal judges) to simply defer to the military’s conclusory statements on the impact on military readiness and morale.
The Obama Administration appeared almost comically conflicted in court as it fought to keep gays out of the military despite the President’s statements to the contrary to the public. The court cited this particular gem of a quote:
President Obama, the Commander-in-Chief of the Armed Forces, stated on June 29, 2009:
“Don’t Ask, Don’t Tell” doesn’t contribute to our national security . . . preventing patriotic Americans from serving their country weakens our national security . . . . [R]eversing this policy [is] the right thing to do [and] is essential for our national security.
The Justice Department notably did not put on an affirmative defense in the case while arguing that DADT should be upheld. While the Justice Department opted to largely rely on the law and its findings, it still appeared in defense of the law. The result was arguing for a law on national security grounds while the President was saying it was not needed for national security.
The Court held on due process the following:
Thus, the evidence at trial demonstrated that the Act does not further significantly the Government’s important interests in military readiness or unit cohesion, nor is it necessary to further those interests. Defendants’ discharge of homosexual servicemembers pursuant to the Act not only has declined precipitously since the United States began combat in Afghanistan in 2001, but Defendants also delay individual enforcement of the Act while a servicemember is deployed in a combat zone. If the presence of a homosexual soldier in the Armed Forces were a threat to military readiness or unit cohesion, it surely follows that in times of war it would be more urgent, not less, to discharge him or her, and to do so with dispatch. The abrupt and marked decline — 50% from 2001 to 2002 and steadily thereafter — in Defendants’ enforcement of the Act following the onset of combat in Afghanistan and Iraq, and Defendants’ practice of delaying investigation and discharge until after combat deployment, demonstrate that the Act is not necessary to further the Government’s interest in military readiness.
In summary, Defendants have failed to satisfy their burden under the Witt standard. They have not shown the Don’t Ask, Don’t Tell Policy “significantly furthers” the Government’s interests nor that it is “necessary” in order to achieve those goals.
On the first amendment, the Court found the DADT to be a content-based law infringing on free speech, noting an array of restrictions:
In other words, all of these examples demonstrate that the Act’s restrictions on speech not only are broader than reasonably necessary to protect the Government’s substantial interests, but also actually serve to impede military readiness and unit cohesion rather than further these goals.
Many of the lay witnesses also spoke of the chilling effect the Act had on their ability to bring violations of military policy or codes of conduct to the attention of the proper authorities. Joseph Rocha, eighteen years old and stationed in Bahrain, felt restrained from complaining about the extreme harassment and hazing he suffered because he feared that he would be targeted for investigation under the Act if he did so. (Trial Tr. 488:20-489:14, July 15, 2010.) In fact, his fear was so great that he initially refused to answer the questions of an investigating officer. (Trial Tr. 519:16-510:10-15, July 15, 2010.) John Nicholson and Anthony Loverde also testified about a similar chilling effect on their speech when [*118] overhearing or being subjected to homophobic slurs or taunts. (Trial Tr. 1138:1-1142:14, 1143:2-24, July 20, 2010 (Nicholson), Trial Tr. 1364:16-1365:25, July 21, 2010 (Loverde).)
The Act prevents servicemembers from openly joining organizations such as the plaintiff in this lawsuit that seek to change the military’s policy on gay and lesbian servicemembers; in other words, it prevents them from petitioning the Government for redress of grievances. John Doe, for example, feared retaliation and dismissal if he joined the Log Cabin Republicans under his true name or testified during trial; thus, he was forced to use a pseudonym and to forgo testifying during trial. (Ex. 38 [Doc Decl.] PP 6-8; see Trial Tr. 88:19-90:15, July 13, 2010; 708:21-709:4, July 16, 2010.)
Furthermore, as discussed above, the Act punishes servicemembers with discharge for writing a private letter, in a foreign language, to a person of the same sex with whom they shared an intimate relationship before volunteering for military service. It subjects them to discharge for writing private e-mail messages, in a manner otherwise approved, to friends or family members, if those communications might lead the (unauthorized) reader to discern the writer’s sexual orientation. These consequences demonstrate that the Act’s restrictions on speech are broader than reasonably necessary to protect the Government’s interest. Moreover, the Act’s restrictions on speech lead to the discharge of servicemembers with qualifications in critically-needed occupations, such as foreign language fluency and information technology. The net effect of these discharges, as revealed not only in the testimony of the lay witnesses but also of the experts who testified and Defendants’ own admissions regarding the numbers of servicemembers discharged and the costs of recruiting and maintaining an all-volunteer military force, compel the conclusion that the Act restricts speech more than reasonably necessary to protect the Government’s interests.
The speech holding is probably more vulnerable than the due process holding since courts have routinely allowed restrictions on speech rights in the military. However, the decision will put the Administration in a more difficult position if it decides to appeal. The Justice Department seemed to struggle at trial to defend the law but not be seen as fighting too hard. It did not present an affirmative defense but still argued that military readiness demanded that DADT be upheld. Now it would have to take the matter on appeal — a move that would further anger gays and lesbians over the failure of Obama to make good on his promise. The Administration is likely to want to wait on the appeal but it will have to be filed as a notice relatively soon. With the November election approaching and polls falling, the Administration may not want to make DADT a prominent issue in addition to same-sex marriage, illegal immigration etc.
Source: LA Times
Blouise,
I would too if my wife was an heir to a major Budweiser Distributorship to boot…..
AY,
Sounds to me as if the man is chocked full of resentments …..
Not that I agree with his position, but if there is anyone whom I think has a better right to speak for or against the military is John McCain….I do not know if I could do what he has done after being a P.O.W. ……I think I could have some major resentments…..
McCain is going to lead a filibuster against the repeal.
http://www.washingtonblade.com/2010/09/13/reid-to-schedule-dont-ask-vote-next-week/
James M. Baker:
Regarding your question on due process, here’s a simple answer. “Homosexuality” is an arbitrary and artificial classification.
Tootie:
The primary reasons for the collapses of civilizations are war and economics combined with hubris.
BIL, The First Amendment is ‘still’ under attack by the military and Administration; remember that 2nd group of pictures from Abu Ghraib that were supposed to be released but then withheld:
“Journalist: Women raped at Abu Ghraib were later ‘honor killed’
Some women who were raped at the US’s Abu Ghraib prison facility in Iraq were later “honor killed” by their families, says a Jordanian reporter who writes on women’s issues.
“In Abu Ghraib, women were tortured by the Americans much more than the men,” Lima Nabil told The Independent. “One woman said she witnessed five girls being raped. Most of the women in the prison were raped – some of them left prison pregnant. Families killed some of these women – because of the shame.”
Nabil, who has reported extensively on the status of women in the Arab world and runs a home for runaway girls, made the comments to renowned foreign correspondent Robert Fisk in an article on honor killings in Jordan. Nabil did not expand on her comments in the article.
Fisk reported that a “very accurate source in Washington” in close contact with military personnel has confirmed “terrible stories of gang rape” by US forces at the now-notorious prison. …”
http://www.rawstory.com/rs/2010/09/women-abu-ghraib-honor-killed/
The article has a quote from Sy Hersh that I heard him make on a TV show, I don’t know the reporter of the above story but I know Sy Hersh and trust him. I wondered why whatever he was talking about received no follow-up.
Mike S.,
Mazel Tov–right back at you! Thirty years is nothing to sneeze at!
My husband and I matured and grew together. We share the same values and value the same things. The fact that my husband is a great cook is just one of the many benefits of being married to him.
“I’ve only had one hero conquer my heart–and I met him when I was just fifteen. I’ve been happily married to my hero for forty-one years!”
Mazel Tov! You are one of the lucky ones and i’ve know a few others. I been married for thirty years, but the decades before that represented a maturation proocess that then allowed mee to establish a lasting and fulfilling relationshp.
“Civilizations collapse because of the immorality of the people in them and their inability to distinguish between right and wrong.”
Tootie,
There s some truth in what you say, but you are blinded by your own religious prejudice which equates morality with things sexual. Morality as taught by Christ, Confuscious, Buddha and Hillel is what Christians know as the Golden Rule (do unto others etc…..). Your strange version of the Christian religion sees sexuality as the be all and end all of morality and in that formulation you have become immoral yourself.
By using sexuality as the measurement, your type can justify murder, hunger, exploitation of the innocents and a bunch of crooked “Preachers” who bilk money from poor parishioners to live lavish lifestyles. Your false morality is also blasphemous in that by accepting an apochryphal “Book of Revelations” as the standard source, you turn God into a “puppet master” rather than a creator. You really need to re-think your premises and pehaps in the process study what is really known as history. I suspect, however, you prefer to listen to the babbling sermons of ignorant and self-important
Preachers, who know nothing about morality or God. To be unable to think your own thoughts about life and the world is truly immoral. That you mix liberals into the immoral mix only exposes your lack of thought as to the human race and your possibly immortal soul.
Buddha,
A Master Pool play can recognize the angles involved in a police state and make his shots around them … seriously, we have reached a very low point if the conversation you overheard is at all accurate … and I have no reason to doubt that it wasn’t.
FF Leo,
Tootie,
As I said before, your views are welcome. I will pass on commenting but I read others’ comments whilst they shread your gawd-offal beliefs.
**********
Offal is definitely the right word choice! In fact, I’d categorize a number of Tootie’s comments as “awful offal.”
I guess you will have to move to Austin, too, Buddah. The place is hopping and you don’t even have to drive. The “dike on bikes” will take you where you want to go.
BIL–Don’t worry about it being OT. You were not really off topic, considering the first amendment and prior restraint legal issues that are arise from the Professor’s DADT story.
What we are becoming as a nation and a culture is indeed the stuff of nightmares. There are a few bright spots, such as the mothership story here, but that is not yet fully writ either. We have to wait and see. I can only hope for the best, as in the quote by MLK,Jr. on the Oval Office carpet:
“The arc of the moral universe is long, but it bends toward justice.”
Or the original statement by Rev. Theodore Parker that Dr. King was paraphrasing:
“I do not pretend to understand the moral universe; the arc is a long one, my eye reaches but little ways; I cannot calculate the curve and complete the figure by the experience of sight; I can divine it by conscience. And from what I see I am sure it bends towards justice.”
Good night all…..
Sorry for going so wildly OT on what should be a thread of victory for the Constitution, but that exchange has been rolling around in my head since I heard it. It eventually made my game fall to pieces I found it so disturbing.
And now, I’m going to bed.
Where I am certain I’ll be dreaming of marching hammers.
It would also be very very easy to get Amazon to run it via Kindle. Plus he’d get paid better than a traditional second printing. Although I guarantee you this too. No traditional publisher in their right mind wouldn’t do a second run. And a third. And a fourth. Ad infinitum. As long as the Pentagon was so paranoid they’d keep buying whole runs. St. Martin’s Press is siting on a gold mine. With free media advertising.
Somewhere an agent is bathing in champagne and celebrating with drugs and hookers and firetrucks in the best 1984 Tom Hanks “Bachelor Party” fashion.
And if you threw in some child pornography, he’d be partying like a DoD employee or a Pentagon contractor.
And while I’m on a roll, I’d like to share a conversation I overheard at a bar this evening. This is the conversation verbatim.
Gal with country radio station shirt (Gal A): “You got here faster than I expected.”
Guy with ballcap (Guy B): “There wasn’t any traffic. This town is dead for a Saturday night.”
Gal A: “What’s up with that?”
Guy B: “The word is out about the cops.”
Gal A: “They thick?”
Guy B: “Thick? The word is out, baby, and the word is ‘Police State’. I musta seen a dozen if I saw one between here and the house. But there was nobody on the road like there shoulda been. People are saying ‘fuck it, I’m stayin’ in.'”
_____
I heard this in a redneck bar in the heart of GOP territory. Real gun rack and bible thumper zone. I know the guy to be a Republican for a fact having taken his money, er, um, played pool with him before. And I know they were serious. That remained their topic of conversation for at least another 20 minutes until a couple they were meeting up with arrived. They didn’t sound happy about it either.
Anecdotal? You bet.
Make of it what you will.
I’m proud of the legacy of our Founding Fathers.
I am rapidly growing ashamed of what this country is becoming.
James M.:
I take it one or two steps further. First of all, it is a given that the manuscript exists on at least two hard drives somewhere; the author and the editor. Logic says there are way more than two copies stored on media. Then there are pre-release publicity copies, which is what you are referring to. Then there are going to be whomever Shaffer used as sources; they will have the key information.
We may have to wait for a blogger to blow this open. In fact, I figure that is where the public will see it first–on some blog or internet news site. By trying to keep this book a big secret, the Pentagon has created immense interest. Shaffer and the publisher could not have imagined getting this much free pre-publication publicity.
I wonder if Julian Assange and his colleagues may already have a copy? It could already be in that monster 1,4GB encrypted and compressed “insurance” file, sitting there like a ticking time bomb for the erstwhile secret keepers.
Otteray Scribe,
The Washington Post article says that review copies of the original version have already been circulated to the media. I wonder how widely they were sent out. If it was to a few mainstream outlets, we probably won’t see anything. However, if they sent it to a bunch of bloggers, I could definitely see it showing up online.
Buddha Is Laughing: The Pentagon is about to learn a painful lesson they should have learned a long time ago. There is no such thing as keeping a secret. It should have been made clear with the Daniel Ellsberg affair, and more recently with the ubiquitous WikiLeaks.
They can keep a secret for a while, but if the story is interesting and juicy, it is going to get out eventually. In the meantime, Anthony Shaffer is going to get a nice royalty check out of his first printing. Anyone want to make any bets about the existence of bootleg or pirated copies of that first printing?
The 1st Amendment under direct attack by the military.
“Pentagon aims to buy up book
By Peter Finn and Greg Miller
Washington Post Staff Writers
Friday, September 10, 2010
The Defense Department is attempting to buy the entire first printing – 10,000 copies – of a memoir by a controversial former Defense Intelligence Agency officer so that the book can be destroyed, according to military and other sources.”