February 8, 2007

"Can we marry up those two — or maybe that's the wrong word — can we have some kind of union of those two issues?"

NY Democratic Congressman Gary Ackerman leaned on Condoleezza Rice after she complained about the lack of Farsi and Arabic translators in the State Department:
"It seems that the Defense Department has a 'Don't Ask, Don't Tell' when it comes to homosexuals. You don't have such a prohibition in your agency, do you?" Ackerman asked Rice.

"No, we do not," Rice replied.

"Well, it seems that the military has gone around and fired a whole bunch of people who speak foreign languages — Farsi and Arabic, etc.," Ackerman told her.
Ackerman laid it on a little thick:
"For some reason, the military seems more afraid of gay people than they are against terrorists, but they're very brave with the terrorists," Ackerman said.."If the terrorists ever got a hold of this information, they'd get a platoon of lesbians to chase us out of Baghdad."

The remark drew some smiles from fellow members of the panel, but Rice was stone faced.
Oh, wouldn't you like to know all the snappy comebacks that ran through her head and couldn't be said?
"Can we marry up those two — or maybe that's the wrong word — can we have some kind of union of those two issues?" Ackerman asked.
Is this Ackerman character the House comedian?

IN THE COMMENTS: Simon writes:
Congressman Gary Ackerman is full of it. I never tire of pointing out that the Defense Department doesn't have a "'Don't Ask, Don't Tell' [policy] when it comes to homosexuals," Congress imposes that policy on the Department of Defense by statutory law, 10 U.S.C. § 654. Since they have a nice, shiny new majority, and since they clearly have such disdain for Don't Ask Don't Tell, why doesn't the new Democratic majority repeal Don't Ask Don't Tell? Has Congressman Ackerman introduced a bill so to do? Why not?

Now that they're back in the majority, Democrats have no standing whatsoever to criticize Don't Ask Don't Tell until they at least move a bill repealing it through Congress (even if it ultimately gets vetoed). This isn't a military policy. It's Congress' policy. And guess what, Democrats? That means it's now your policy. Take that back to 'Frisco on your private jet, Nancy.

63 comments:

Simon said...

Congressman Gary Ackerman is full of it. I never tire of pointing out that the Defense Department doesn't have a "'Don't Ask, Don't Tell' [policy] when it comes to homosexuals," Congress imposes that policy on the Department of Defense by statutory law, 10 U.S.C. § 654. Since they have a nice, shiny new majority, and since they clearly have such disdain for Don't Ask Don't Tell, why doesn't the new Democratic majority repeal Don't Ask Don't Tell? Has Congressman Ackerman introduced a bill so to do? Why not?

Now that they're back in the majority, Democrats have no standing whatsoever to criticize Don't Ask Don't Tell until they at least move a bill repealing it through Congress (even if it ultimately gets vetoed). This isn't a military policy. It's Congress' policy. And guess what, Democrats? That means it's now your policy. Take that back to 'Frisco on your private jet, Nancy.

MadisonMan said...

I never tire of exposing my ignorance, so I'll ask: If the President is Commander in Chief, why can't he command his subordinates to ignore the statute? Which takes priority: following orders or following the Law? (Can you tell I'm not military?)

I agree with the crux of the Congressman's argument: It is regrettable that the Armed Services lose talented linguists (I did not use the obvious pun) because of something that has nothing to do with the execution of their job.

Simon said...

MadisonMan -
"If the President is Commander in Chief, why can't he command his subordinates to ignore the statute?"

Because one of the President's few explicitly-defined responsibilities is to "take care that the laws be faithfully executed," Art II § 3. The President can bend a law if he thinks it may be unconstitutional to interpret it in a particular way, and he may refuse to enforce it if he believes that it is unconstitutional, but "[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter," Youngstown, 343 U.S. at 637 (Jackson, concurring).

Simon said...

Re the obvious pun - well, if they're gay, they probably don't much like, um, being cunning. ;)

Tim said...

I believe the "Don't Ask, Don't Tell" policy applies to uniform military personnel, not to civilian DOD personnel; so Ackerman's complaint is just that of another poseur striking a pose. I'm sure his insult directed toward the troops is another example of how our new Democrat majority expresses its support for the troops...

Aaron said...

Here is another thing that the Congressman fails to mention. Our enemies hate homosexuals even more than our military supposedly does. Of course the hangings that have gone on in arab countries for the "crime" of being gay really doesn't matter when you are trying to make a political point.

Joseph Hovsep said...

Your point is fair, Simon, but in partial defense of Ackerman, he was responding to Rice's compaint that there weren't enough talented linguists at the State Department. His suggestion that Rice recruit fired gay military linguists was made in jest but it actually has some merit for addressing Rice's short-term concern.

I'm not sure where repealing Don't Ask Don't Tell fits on the new Democratic Congress's list of priorities (or how much support there is for it), but its probably not very high on this list. Ackerman may have been using his airtime to publicize the absurdity of the rule, nudge his colleagues to address it, and, of course, poke some fun at those who want to continue the policy of kicking gays out of the military (mostly Republicans).

MadisonMan said...

Re: the Democrats not introducing a bill repealing DADT. Maybe the party thinks it doesn't have the votes, and doesn't want to focus attention on DADT at a time when there are more pressing needs. Hasn't the Republican Party been rightly scorned for spending too much of 2006 talking about Gays and Marriage while more important things like Budgets were ignored? That doesn't mean that any politician can't use the foolishness of DADT politically.

I would think any politician would welcome a DADT repeal bill. Every bill is an opportunity to Earmark! Republicans could load the bill down will earmarks and the President could veto, claiming both fiscal responsibility and protecting Traditional Family Values.

Pogo said...

Re: .."If the terrorists ever got a hold of this information, they'd get a platoon of lesbians to chase us out of Baghdad."

Imagine the firestorm in blogland had a Republican uttered these words. Shock, horror, anger, and calls for resignation would be followed by mea maxima culpas and apologies for 'my insensitive and hurtful words' would abound.

And not a peep from downtownlad because these are his peeps, so, you know, no foul.

Joseph Hovsep said...

tim: I believe the "Don't Ask, Don't Tell" policy applies to uniform military personnel, not to civilian DOD personnel; so Ackerman's complaint is just that of another poseur striking a pose.

DADT does not apply to civilian personnel, but many military linguists are in uniform. Ackerman is referring to those uniform military personnel who speak Arabic and Farsi and have been fired on account of their sexuality. He's not "striking a pose"--this is a real issue.

Pogo said...

Peeps!

Zeb Quinn said...

And exactly how many Farsi and Arabic speaking linguists have been excused from the military for violating don't ask don't tell?

Sloanasaurus said...

As a compromise, Congress should establish a special forces Brigade for out-of-the-closet gays in the military. They could call it the "Sacred Band" in celebration of the famous Thebean force.

Such a Brigade would not only be celebrated, it would also be a force to reckon with.

Simon said...

Joseph,
I'm not saying that they have to repeal it. I'm saying that they as a caucus can't criticize it until they take some serious steps to repeal it, and Congressman Ackerman specifically can't criticize it when, of the three bills that the Library of Congress says he has introduced thusfar in this Congress (H.RES.107, Calling for the immediate and unconditional release of Israeli soldiers held captive by Hamas and Hezbollah, and for other purposes; H.R.661, To amend the Humane Methods of Livestock Slaughter Act of 1958 to ensure the humane slaughter of nonambulatory livestock, and for other purposes; H.R.873, To amend the Truth in Lending Act to prohibit fees by creditors for payments on credit card accounts by electronic fund transfers, and for other purposes), not a single one would repeal § 654. When I say Pelosi can't talk the environmentalist talk and walk the private jet walk, I mean she should can the talk, not the jet. When I say that the Democrats should either pass a bill defunding the war or admit that they deliberately mislead the electorate last fall about what they'd do with a majority, I mean that they should come clean, not defund the war. And when I say that the Democrats can shut up about § 654 or take some steps to repeal it, I really don't care which they do, but they can't have it both ways. Don't Ask Don't Tell is now their policy, and will be until they repudiate it in the only meaningful way they can: by passing a bill that repeals it.

MadisonMan,
"Re: the Democrats not introducing a bill repealing DADT. Maybe the party thinks it doesn't have the votes, and doesn't want to focus attention on DADT at a time when there are more pressing needs."

When you say the party may think it doesn't have the votes, given that they have a commanding majority in the House, I take that to mean that they're terrified of calling a vote and showing the world that it isn't just those horrible, mean conservatives that would vote to keep gays out of the military, but some of those lovely democratic folk, too. Because the only way they could think they didn't have the votes is if quite a few of their own caucus voted against repeal. For that matter, frankly, I'd let them off the hook a little if they at least brought it to a vote - that would at least acknowledge ownership, it would at least represent an effort. It would be something.

As to "more pressing needs" - well, gee, where's DowntownLad when you need him to remind us that there is no issue in society more pressing than the discrimination against - nay, oppression of - homosexuals by the beastly Republican Right? I guess it just isn't that pressing an issue when it's oppression by liberal Democrats who have more "pressing" priorities. ;)

MadisonMan said...

Simon, Gays are to Democrats what Abortion Foes are to Republicans. They get a lot of, er, lip service, but when push comes to shove, not much action. It's not like they're going to defect to the other party.

But I think you know this.

Jeff said...

"Congressional opposition to lifting the ban on gays in the armed forces was led by Democrat Senator Sam Nunn of Georgia who organized Congressional hearings that largely buffed the armed forces position that has remained unchanged since the 1981 directive. While Congressional support for reform was led by Democrat Congressmen Barney Frank of Massachusetts, who fought for a compromise, and retired Republican Senator Barry Goldwater, who argued for a complete repeal of the ban."

It was ALWAYS the Dem's policy. This law was enacted prior to the 1994 elections!!!

hygate said...

Simon said...
Congressman Gary Ackerman is full of it. I never tire of pointing out that the Defense Department doesn't have a "'Don't Ask, Don't Tell' [policy] when it comes to homosexuals," Congress imposes that policy on the Department of Defense by statutory law, 10 U.S.C. § 654.


A law that was proposed by Bill Clinton and passed by a Democrat controlled congress. Why is it the military's policy? Given its history, wouldn't it be more accurate to call it the "Democrat's policy?"

Warning:
True believers should not contemplate these facts as they have been shown to make some individuals’ heads explode.

Freder Frederson said...

If the President is Commander in Chief, why can't he command his subordinates to ignore the statute? Which takes priority: following orders or following the Law? (Can you tell I'm not military?)

Simon's response is incorrect in that it assumes that the commander-in-chief power is just yet another executive power. Some believe that being commander in chief is subordinate to the executive power and as such the president is subject to the same restrictions as the military.

Regardless of whether the president can violate a law he thinks is unconstitutional, there is no doubt that military members have an affirmative duty to disobey orders that they believe to be illegal. "Just following orders" is absolutely not a defense in the military justice system. They even have an affirmative duty to prevent the commission of war crimes by others.

Simon said...

Freder,
My response didn't say anything about the commander in chief power, except that it co-exists with the take care clause, and that the latter applies here. So I'm not sure you're even understanding the point I actually made, but assuming you did, in what way is that "incorrect," especially considering that there are a lot of theories of executive power advanced by a lot of respectable scholars?

As to the idea that the military can ignore orders they believe to be illegal, you'll need to support that with a citation, especially since there is presently a high profile court martial taking place over exactly that. At very least, that is clearly a disputed position, otherwise Lieutenant Watada would likely be sleeping a lot better.

Simon said...

Paging Ruth Anne, our in-house JAG.

hygate said...

As a former member of the military, I can state that I received, on more than one occasion, training on my duty to refuse to obey illegal orders. The question of course is what constitutes an illegal order? The examples given in the training I attended tended to center around shooting prisoners and other obvious war crimes. However, considering that the law instituting the "Don't ask, Don't tell" policy was passed by Congress and signed by the President, I fail to see how any member of the military could fail to perceive it as anything other than legal.

Freder,

If you could point me to any citations showing that members of the military are legally obligated to disobey unjust policies (which I think "Don't ask, Don't tell" is) I would be extremely grateful. I seem to have missed that training.

Joseph Hovsep said...

Zeb: And exactly how many Farsi and Arabic speaking linguists have been excused from the military for violating don't ask don't tell?

According to this article, between 1998 and 2004, the military discharged 20 Arabic and six Farsi speakers. That may not seem like a frighteningly high number at first, until you consider the desparate shortage of these skills and the obvious need for them.

Hygate: A law that was proposed by Bill Clinton and passed by a Democrat controlled congress. Why is it the military's policy? Given its history, wouldn't it be more accurate to call it the "Democrat's policy?"

That's true, except that DADT was a liberalization of the prior rule banning gays and lesbians from military service under any circumstances. Clinton himself promised a full repeal of the ban on gays in the military with support of most of his party. Clinton compromised with DADT after finding that the military leaders strongly objected and there was sufficient Democratic opposition in Congress (combined with virtually no Republican support) to stymie efforts for a wholesale repeal of the ban. So, DADT was passed by a Democratic Congress and President, but it was really a compromise between the Democrats' position in favor of repealing the ban and the conservative position in favor of keeping the ban.

Freder Frederson said...

If you could point me to any citations showing that members of the military are legally obligated to disobey unjust policies (which I think "Don't ask, Don't tell" is) I would be extremely grateful. I seem to have missed that training.

I was addressing the larger question by madisonman "Which takes priority: following orders or following the Law?", and not this particular policy. There seems to be a lot of confusion lately that any order given by the president must be followed. This of course is 100% false.

Personally, I think that if the President (and of course this president wouldn't unless it was to make it stricter) decided to change the "Don't Ask Don't Tell" policy without Congressional approval he would be overstepping his constitutional authority as the Constitution clearly assigns Congress the the duty "[t]o make rules for the government and regulation of the land and naval forces" (Article 1, Section 8).

Molon_Labe_Lamp said...

Simon

Freder is right that as a member of the military I have a duty to disobey and report any orders I believe to be illegal. Obvious orders such as torture and the killing of civilians in a combat theater are simple choices. This was drilled in to us during Basic Training, though I'm not sure what regulation it's listed under. For that I'll defer to Ruth Anne or VNJAGVET.

LT Watada is on shaky ground because his premise is that the war was/is illegal and thus he performed his duty in ignoring an illegal order by refusing to deploy.

The legality of the war rests in the nebulous laws of international courts and really what war is legal?

For years Iraq fired upon coalition aircraft patrolling the no fly zone. This in itself is a provocative act of war. However in this particular case Iraq violated the terms of the cease fire from Gulf War I and because of this was already legally in a state of war with the signatories of that truce document. At least that's my understanding; correct me if I'm wrong.

Lt Watada is going to have a tough time with this.

As far as gays in the military...If they want to fight I'm happy to let them in. It's one less reason that anti-military universities will have to hide behind when they treat recruiters so poorly.

Tully said...

[F]or the inferior to assume to determine the question of the lawfulness of an order given him by a superior would of itself, as a general rule, amount to insubordination, and such an assumption carried into practice would subvert military discipline. Where the order is apparently regular and lawful on its face, he is not to go behind it to satisfy himself that his superior has proceeded with authority, but is to obey it according to its terms, the only exceptions recognized to the rule of obedience being cases of orders so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of their unlawfulness....

Except in such instances of palpable illegality, which must be of rare occurrence, the inferior should presume that the order was lawful and authorized and obey it accordingly, and in obeying it can scarcely fail to be held justified by a military court.’ --US v. Calley


Unless the order is obviously illegal under service regulations and the UCMJ (executing prisoners, slaughtering civilians) you disobey it completely at your "own peril." A simple order to deploy doesn't come remotely close to that standard of "palpable illegality." Watada has no leg to stand on there.

Freder Frederson said...

The legality of the war rests in the nebulous laws of international courts and really what war is legal?

Not really. The legality of the war rests on the question of whether the president can invade a sovereign country without a formal declaration of war from the Congress (as only the Congress can declare war.) Even the administration admits there was never a formal declaration of war. Also even if AUMF was sufficient to justify the invasion, is it sufficient to constitutionally support continued action in Iraq without some kind of express Congressional approval. He has a huge uphill fight, but he doesn't necessarily need to depend on international law principles.

Crimso said...

It would seem that the members of the military who have been dismissed did so because they "told." If their jobs are so critical (and they are), didn't they have an obligation to keep their orientations secret so as to not damage the ability of the military to gather intelligence? Did they feel that scoring political points with regards to their situation was more important than shutting up and doing their jobs?

Crimso said...

It would seem that the members of the military who have been dismissed did so because they "told." If their jobs are so critical (and they are), didn't they have an obligation to keep their orientations secret so as to not damage the ability of the military to gather intelligence? Did they feel that scoring political points with regards to their situation was more important than shutting up and doing their jobs?

Crimso said...

I repeat myself when under stress, I repeat myself...

Simon said...

Joseph:
"[§ 654] was really a compromise between the Democrats' position in favor of repealing the ban and the conservative position in favor of keeping the ban."

If that were true, why did 120 of 175 Republicans vote against it in the House and 18 of 43 Republicans vote against it in the Senate?

Freder:
"Personally, I think that if the President ... decided to change the 'Don't Ask Don't Tell' policy without Congressional approval he would be overstepping his constitutional authority as the Constitution clearly assigns Congress the the duty "[t]o make rules for the government and regulation of the land and naval forces."

Who has argued anything to the contrary? (Although, per Jackson's Youngstown concurrence, I'd argue that if Congress has remained silent on an issue, the President and his officers have power to fill the vacuum under the commander in chief power; obviously, though, that is inapplicable here, where Congress has made its will quite clear).

I take it you're conceding that you don't have a citation to offer.

Molon:
"The legality of the war rests in the nebulous laws of international courts."

I don't believe that it does. In my view, no treaty obligation can bind the hands of Congress, thus, since this war was begun with an explicit authorization to use military force, see Public Law No: 107-243, that authorization supercedes any and all treaty obligations to the contrary, leges posteriores priores contrarias abrogant, which renders such obligations void unless they can be finessed per Charming Betsy.

RogerA said...

I find myself in the rather strange position of agreeing with Freder re "following orders." I do not have a citation, but in ethics and geneva conventions training, I do recall in my soldiering days about the need to disobey some orders (its the refutation of the Nazi Nuremberg defense "following orders."

RogerA said...

oops--sorry--I see Tully addressed the issue more correctly than I did. Sorry.

Joseph Hovsep said...

Simon (quoting me): "[§ 654] was really a compromise between the Democrats' position in favor of repealing the ban and the conservative position in favor of keeping the ban."

If that were true, why did 120 of 175 Republicans vote against it in the House and 18 of 43 Republicans vote against it in the Senate?


Since it was a compromise on a very polarizing topic, the vote tally isn't that informative. I don't have time to look into the specific justifications for individual votes, but I'm pretty confident that some Republicans voted no because they opposed any liberalization (e.g., Helms, Hatch) and some Democrats voted no because they supported greater liberalization than DADT provided(e.g., Wellstone, Feingold).

I'm not trying to pull one over on you. Those really were the respective liberal/Dem and conservative/GOP positions and DADT was a compromise reluctantly offered by a liberal president (in 1993) who proposed repealing the ban on gays in the military as one of his first acts in office. Do you really think otherwise?

vbspurs said...

Paging Ruth Anne, our in-house JAG.

Yo, I called her out yesterday on another related thread, and she didn't come out to play.

Maybe she is duty-bound not to weigh in about these matters. Confidentiality, and all that.

Cheers,
Victoria

Molon_Labe_Lamp said...

I stand corrected, thanks Freder and Simon for shining light on the legality issue. I've been laboring under the illusion that many against the war argue its legality strictly in terms of international consensus and permissions granted from UNSC resolutions.

I was ignorant of the continuing legality issues in wrapped up in the AUMF and the executive power to prosecute the war.

Still isn't this somewhat moot? Doesn't Iraq's constant violation of GW I treaties mean that we have always remained in a formal/legal state of War with Iraq?

I am at work and can't research this on my own, but I’ll continue to dig as time allows.

Thanks

Revenant said...

His suggestion that Rice recruit fired gay military linguists was made in jest but it actually has some merit for addressing Rice's short-term concern.

Is the information about which people were fired for being gay available to the State Department? My understanding was that the DoD released the numbers of people discharged, but didn't identify who they were.

hygate said...

hovsep:

I remember the situation surrounding the institution of the "Don't Ask, Don't Tell" policy quite well. I was in the Army at the time, and as you might imagine, it was a topic of high interest for just about everyone in the military. I agree, it was a compromise between conservatives and liberals. However, many of the conservatives opposing the lifting of the ban on gays were Democrats. Additionally, even as a compromise, it’s still a policy crafted and passed into law by a liberal President and a majority Democrat congress – making it their policy, not the military’s.

Freder Frederson said...

Still isn't this somewhat moot? Doesn't Iraq's constant violation of GW I treaties mean that we have always remained in a formal/legal state of War with Iraq?

No, we haven't been formally or legally at war with anyone since we signed the peace treaty with Japan in 1945. The last time we declared war was on December 11, 1941, when we declared war on Germany and Italy (after they declared war on us on the 8th and 9th). The administration has never claimed that a formal state of war existed between Iraq and the U.S.--in fact quite the opposite. They have stressed there was never a formal declaration of war.

Whether the invasion was legal under international law is another issue altogether. It was certainly never authorized by the U.N., although the subsequent occupation did receive U.N. blessing (and was actively sought by the U.S.). The U.S. claims that the invasion was a "preemptive" act, which is justifiable under international law. However, you really have to stretch the definition of "preemptive" to fit the invasion of Iraq. Even if all the claims the administration made about Iraq were true, it still looks more like a "preventative" war, which is still illegal. If the administration knew the intelligence was bad, then the invasion rises to the level of an act of aggression, which is a very serious war crime.

Freder Frederson said...

Additionally, even as a compromise, it’s still a policy crafted and passed into law by a liberal President and a majority Democrat congress – making it their policy, not the military’s.

Of course it's not. The military doesn't make its own policies. That is clearly the job of Congress. See Article 1 of the Constitution.

Molon_Labe_Lamp said...

Freder,

Thanks for the lesson. With Respect to Lt Watada this seems like bad news. If he were truly worried about the constitutional legality of the Iraq War he would have researched and confirmed as you stated; the US has not formally declared war since WWII. I note that Lt Watada requested a theater change to Afghanistan, another illegal war by his definition. Apparently some wars are more illegal than others.

Jack said...

Many thanks to Joseph Hovsep for the link. An intriguing point about those numbers: "The military previously confirmed that seven translators who specialized in Arabic had been discharged between 1998 and 2003 because they were gay. The military did not break down the discharges by year, but said some, but not all, of the additional 13 discharges of Arabic speakers occurred in 2004."

Too bad they couldn't break that down, since half of that time period was prior to the Bush administration and almost all of it was prior to the war in Iraq. (Though, honestly, any firing after 9/11 should be severely scrutinized.)

But a more important question: do we really know that these people were not hired by the State Department? And if not, is that necessarily Ms. Rice's fault? Last I checked, government agencies cannot just hire anyone they choose. The individuals must first apply for the job, then accept it if offered. Condi is complaining that there aren't enough translators. Could that be the case even though they hired all that applied?

hygate said...

Freder:

I'm well aware that it’s the Congress's responsibility "To make Rules for the Government and Regulation of the land and naval Forces." That's the point. "Don't Ask, Don't Tell" is constantly mischaracterized as the "military's policy"

http://en.wikipedia.org/wiki/Don't_ask,_don't_tell

http://dont.stanford.edu/

http://www.sfgate.com/cgi-bin/article.cgi?file=/chronicle/archive/2003/11/30/EDGTH39QR51.DTL

even Congressmen, who presumably should know better, do it.

http://www.newsday.com/news/local/wire/newyork/ny-bc-ny--platoonoflesbians0207feb07,0,6858474.story?coll=ny-region-apnewyork

The fact of the matter is that "Don't Ask, Don't Tell" is the nation’s policy, as even the Washington Post acknowledges:

http://www.washingtonpost.com/wp-dyn/content/article/2006/02/13/AR2006021302373.html

And that policy was enacted when the United States Government was controlled by members of the Democratic Party. (Presidency, both houses of Congress) I wonder why some people wish to obfuscate that fact. Perhaps because demonizing the military and protesting the presence of recruiters on campus is a lot easier and more fun than meaningful work that could actually lead to change.

Joseph Hovsep said...

hygate: I don't dispute that DADT was passed by Congress and signed by the President. I was responding to your suggestion that DADT was the Democratic policy as opposed to the Republican policy, not the military policy. So, I agree that DADT is a Congressional policy which represented a compromise between mostly anti-ban Democrats and mostly pro-ban Republicans.

I'd add one caveat though... the policy of excluding and expelling gays and lesbians from the military was a military policy until DADT. The ban had been enforced for a long time, but was formalized by Reagan's DOD in 1981. Clinton wanted to change it and promised to do so before he was elected. Military leaders objected to lifting the ban and they were integrally involved in drafting the DADT compromise which was submitted to and approved by Congress. So, yes, DADT is a policy enacted through the political process to which the military is subject, but its not quite fair to say that military leaders don't have a role in the military's anti-gay policies.

Tully said...

The legality of the war rests on the question of whether the president can invade a sovereign country without a formal declaration of war from the Congress (as only the Congress can declare war.)....No, we haven't been formally or legally at war with anyone since we signed the peace treaty with Japan in 1945.

Wrong. Yes, he can, and sorry, but Congress did indeed "declare war" for all legal and constitutional purposes with the passage of Public law 107-243, 116 Stat. 1497-1502, aka the Iraq AUMF.

Q: My question is this, do you foresee the need or the expectation of a Congressional declaration of war, which the Constitution calls for, and if so, against whom? (Scattered Laughter)

Joe Biden: The answer is yes, and we did it. I happen to be a professor of Constitutional law. I'm the guy that drafted the Use of Force proposal that we passed. It was in conflict between the President and the House. I was the guy who finally drafted what we did pass. Under the Constitution, there is simply no distinction ... Louis Fisher(?) and others can tell you, there is no distinction between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever. --Senator Joseph Biden, 10/22/2001


In any case, the principles are clear. Only a palpably illegal order (as per service regulations and the UCMJ) may be refused on the grounds of being an illegal order. Watada did not refuse a palpably illegal order. He refused a very obviously legal one, and urged others to do likewise.

Revenant said...

Yeah, the idea that there's a distinction between a declaration of war and an authorization of military force is pure fiction. They're the same thing under the law.

In any event, Iraq had repeatedly fired on our forces during the years between the first and second gulf wars. Any one of those acts was an act of war under international law, and thus grounds for our invasion - that just isn't the legal argument the Bush Administration chose to make. But even if the Bush Administration completely fabricated the whole WMD story (which it obviously didn't), the fact that we had the legal right to wage war against Iraq is unchanged. We had multiple legal causes for war.

You're right that the UN didn't sign off on the war, but the UN's approval is unnecessary under international law.

Simon said...

Joseph,
"The ban had been enforced for a long time, but was formalized by Reagan's DOD in 1981. Clinton wanted to change it and promised to do so before he was elected."

Ratting on campaign promises is nothing new for Democrats, then? ;)


"[Y]es, DADT is a policy enacted through the political process to which the military is subject, but its not quite fair to say that military leaders don't have a role in the military's anti-gay policies."

That doesn't quite follow - it's not quite fair to say that the military leadership a decade or so ago didn't have a role in enacting DADT, but it's entirely fair to say that today's military leaders have no role in deciding whether or not to follow DADT.

hygate said...

hofsep:

DADT is a Congressional policy which represented a compromise between mostly anti-ban Democrats and mostly pro-ban Republicans

I disagree that most Democratic congress critters were mostly anti-ban. In 1993 there were still a significant number of conservative Democratic congress members. In addition, many would also have been from districts (including districts where the majority of voters were Democrats) where the most of their constituents opposed allowing gays into the military. One example, any Democrat representing a district where the majority of voters were African-American would have voted against "Don't Ask, Don't Tell” but not because they wanted to end the ban altogether. As a political bloc, African-Americans are not known for their progressive attitudes toward homosexuality.

Military leaders objected to lifting the ban and they were integrally involved in drafting the DADT compromise which was submitted to and approved by Congress. So, yes, DADT is a policy enacted through the political process to which the military is subject, but its not quite fair to say that military leaders don't have a role in the military's anti-gay policies.

As you said, the military is subject to the political process. The fact that military leaders protested ending the ban and had input into the drafting of the compromise is irrelevant. If the civilian leadership had told those leaders to shut up and soldier on they would have done so (just as their predecessors did when the military was integrated) or ended their service. The ultimate responsibility still lies with government, which is to say us.

the policy of excluding and expelling gays and lesbians from the military was a military policy until DADT. The ban had been enforced for a long time, but was formalized by Reagan's DOD in 1981

The situation was a bit more complicated than that. The ban was unevenly enforced. As long as service members kept quite about their sexual preferences (or could “prove” that their behavior was a one time occurrence) and were otherwise good soldiers/sailors/marines/airmen they could be retained at their branches discretion. (HT to Wikipedia) The DOD lost court cases were they tried to discharge individuals for being homosexual for just this reason. The real problem was that the laws enacted by congress governing the military made homosexual acts illegal (and a few heterosexual one as well). Anecdotally, I was in the U.S. Army during the 1980’s and only saw two people get discharged for being gay; two women who were caught in the act in the barracks. I’m not gay (not that there is anything wrong with that) but I knew individuals who didn’t seem to be trying to hard to hide that they were; which is why I found some of my fellow service members apparent panic at the thought that they might have to share a shower room with gays rather amusing. Did they really think that they weren’t already serving with homosexuals? In any event, the DOD did not enact these policies in a vacuum. They did so with the acquiescence of the nation’s elected civilian leadership.

James said...

The "Don't Ask, Don't Tell" policy is not a ban on gays in the service, it was Clinton's compromise attempt to weaken the statutory ban on homosexual activity in the service. The Center For Military readiness has a page on it, which is down at the moment. [Archived copy.]

Congress passed a law in 1993, during a previous Democratic majority, affirming that ""Homosexuality is incompatible with military service." ."(It has never been regarded as incompatible with State Department service, but that's another story.)

Furthermore, homosexual activity is still a crime under the Uniform Code of Military Justice, Article 125, which is unaffected by Lawrence v. Texas because it's in the military.

In any case, it's Congress that will have to act if they want to change it.

Joseph Hovsep said...

hygate & Simon: I fully admit that DADT was created with the help of some conservative Democrats and signed into law by Bill Clinton, and agree that this history should not be ignored. It has certainly not been forgotten by disappointed gays and lesbians. I really want to make two points.

First, even when military policies are adopted by the political branches and with public input and debate, military leaders play a crucial role in influencing that public discussion and shaping the resulting legislation. In 1993, military leaders were outspoken in opposing the lifting of the ban on gays, in articulating and justifying the rationales for anti-gay discrimination, and the public was influenced by that because they respect those leaders. If military leaders had acted differently, the resulting policy would likely have been different. I'm not trying to demonize the military or lay blame where it doesn't belong, but military leaders have an impressive ability to influence public policy and military policy. They can use that power to support the Commander-in-Chief in a plan for racial desegregation or gay tolerance or to invoke fear in the public mind about undermining military morale. And they bear some responsibility for the effect when they go public. Lately, military leaders have been increasingly consistent in voicing support for ending DADT which will have an effect and those leaders will bear some responsibility for resulting changes (see, e.g. Shalikashvili).

Second, even though Democrats controlled the Presidency and Congress when DADT was passed and plenty of Democrats demanded compromise, lifting the ban on gays in the military was a Democratic idea that was simply introduced before its time. The Republican support for lifting the ban was almost nonexistent, with the notable exception of retired Senator Goldwater. I hadn't thought about DADT in the context of the new Congress until today, and now having thought about it, I'm pretty confident its going to be repealed by this Congress. Both military opinion and public opinion on the matter have shifted enough that few Democrats will obstruct its repeal and a growing number of Republicans will now join with the Democrats. And Bush will finally be able to sign into law some public policy that is genuinely supportive of gay people instead of just being nice to gay people in private while he rails about them destroying the family in public.

Joseph Hovsep said...
This comment has been removed by the author.
Joseph Hovsep said...

James: [Homosexuality] has never been regarded as incompatible with State Department service, but that's another story.

That's not true at all. That's another irony of this little incident that I had forgotten about. Gays were specifically banned from the foreign service until the 1970s because they were deemed a security risk. In 1965, Johnson's Secretary of State Dean Rusk issued a statement to the press that the State Department did not knowingly employ homosexuals, and would discharge any such employees if they were identified. The policy remained in effect until Carter was elected.

Revenant said...

Gays were specifically banned from the foreign service until the 1970s because they were deemed a security risk.

Gays *were* a security risk back in those days. Homosexuality was criminal in most of the country and taboo in all of it. This made homosexuals prime candidates for blackmail in much the same way that a secret kiddie porn habit would today. The KGB actively tried to identify homosexuals within the US military, scientific, diplomatic, political, and intelligence communities in order to blackmail them into spilling sensitive information. The US government knew the KGB was doing it, too.

Which isn't to say that homophobia had no part in the ban, of course.

Simon said...

James said...
"Furthermore, homosexual activity is still a crime under the Uniform Code of Military Justice, Article 125, which is unaffected by Lawrence v. Texas because it's in the military.

More specifically, it isn't (or at least shouldn't - but see Bolling v. Sharpe, 347 U.S. 497 (1954),although needless to say, I would overrule both Bolling and Lawrence) be affected by Lawrence because Lawrence held, rightly or wrongly, that the Texan law was unconstitutional under the Fourteenth Amendment -- the prohibitions of which, by its own terms ("no state shall..."), applies only to conduct of states and state actors, not to the Federal government or its officers.


Joseph:
"[E]ven when military policies are adopted by the political branches ... military leaders play a crucial role in influencing that public discussion and shaping the resulting legislation. In 1993, military leaders were outspoken in opposing the lifting of the ban on gays, in articulating and justifying the rationales for anti-gay discrimination, and the public was influenced by that because they respect those leaders ... [M]ilitary leaders have an impressive ability to influence public policy and military policy."

And within limits, I don't think that's a bad thing. Obviously the civilian leadership rather than military professionals should not have a great deal of say over what it is tasked to do (apart from saying "we have that capacity," "we don't have that capacity" and "here is what we need from Congress in order to accomplish that goal"), but that leadership should be broadly deferred to over what it believes is necessary in terms of internal structure to efficiently carry out its primary mission.

That's basically my position. I have no opinion on the merits of whether gays should be allowed to serve openly in the military; the professional officer corps knows what will allow the military to function best, and absent a particularly clear and compelling reason to do otherwise, Congress should defer to their expert opinion. If the military want DADT, I support keeping it. If they don't feel that it's necessary any more, I support repealing it.

Al Maviva said...

The legality of the war rests on the question of whether the president can invade a sovereign country without a formal declaration of war from the Congress (as only the Congress can declare war.)

Revenant is correct, Freder wrong. There is a broad spectrum of force that scholars (and implicitly, by funding and acceptance, Congress) have found to be encompassed within the Executive Branch's power. Declarations of War are formalistic and in the modern context, almost archaic. The functional questions - does it look like war and is Congress okay with funding it - are the only ones that really matter. For big wars - yep, a President really needs a declaration or he isn't going to get far. For little wars - occasional police actions in the Carribean for instance - none appears to be needed, though long term action (e.g. Haiti) needs at least implicit congressional approval through continued funding.

As to DADT and Ackerman's question... the inquiry was truly facile. With 20 Arabic or Farsi speakers discharged total, there isn't exactly a large pool to meet the crushing needs of State. Moreover, State Arabic/Farsi is different from what you would typically find in .mil. Partly it is a difference in erudition, partly it is a cultural difference. The .mil linguists typically speak at a DOD 2 or 2+ level rating, maybe a bit higher for a good linguist. That means they can just about get along in the language. They are also likely to have a fairly detailed military and/or street vocabulary. In contrast, State folks would tend to test out at 3+ on the military scale, usually higher, with a much greater degree of formal linguistic knowledge, less idiomatic speech and a broad social vocabulary. The .mil linguists tend to be slightly differently cultured than State people - though I've known many military linguists (other than myself when I served) who were cultured and educated and even brilliant, and some who moved over to State, few had the Ivy League and cerebral sort of outlook that most State personnel have. It takes a different kind of person to study Farsi for a year and then go jump out of planes and spend months in the woods or desert in a tent or hut, versus going to Princeton for a year or two to get a grad degree in some type of area studies. You really want the slightly rougher military folks dealing with delicate diplomatic negotiations, even those involving relatively trivial matters like disputes arising under host nation bilateral legal agreements? I'm guessing the answer is similar to the one you'd give, as to whether you want a Harvard grad with delicate sensibilities responsible for leading the occasional bayonet and pistols charge.

Neither breed of linguist/individual is superior or inferior to the other, they are just quite different and Ackerman is fairly stupid to act as if they are interchangeable cogs within the government, ignoring the different skill sets and cultural fit.

downtownlad said...

Lot of falsehoods on this post.

First - it's not 20. It's 55 and counting. And that's just Arabic linguists. As of 2004, over 322 linguists in general have been fired. How many linguists do you think the military actually has???? The Bush Administration has definitely kicked it up a notch when it comes to the witchhunt of tracking down gays in the military.

http://gayorbit.net/?p=5137
http://www.gaymilitary.ucsb.edu/PressClips/05_0224_UPI.htm

And the Bush Administration is violating the law - and for that - Bush should be prosecuted - because he is VIOLATING DADT. This administration has kicked Arab linguists out of the army who did NOT tell anyone they were gay.

Proof can be found here:

http://www.msnbc.msn.com/id/14052513/

Somehow I don't think the people who passed DADT expected that a future presidency would be mining sights like Facebook for any hint that someone is gay, that they would be asking people if they like community theater and automatically coming to the decision that someone is gay, that they would spy on people in the military to see if they were holding hands with someone of the same sex when they are off base. It is a witchhunt indeed.

That's just the ones that got kicked out. How many do you think haven't bothered to join, because this country has told them that they don't want them to serve? That is easily in the hundreds, as most young gay people are out of the closet.

And if you look at a field like linguistics, I would bet that a good 30-40% of them are gay, at least amongst the men.

So the comment towards Rice was entirely appropriate.

As for the bogus argument that Democrats forced this policy on America, while Republicans fought valliantly for the defense of gay people when DADT was asked - well that is a complete fabrication of the truth. Then again - we know that Republicans don't like facts.

Democrats have been actively trying to repeal this bill. Marty Meehan introduced a bill last Congress to repeal it, but it didnt' get a vote.

The Democrats will certainly bring it up for a vote - they grilled the new Defense Secretary about it (he FAVORS it of course). But they want to avoid the same mistake Clinton made, by not making it the very first issue that they deal with. Surely a vote on the war itself is more important. And Bush is guaranteed to veto the law, despite whatever hallucinations some of Ann's commenters might have to the contrary.

And Pogo - I haven't commented yet, because I actually have a job, and unlike you - I actually WORK during the day. You're obviously goofing off.

hdhouse said...

now that I have read what the rightwingnuts have had to say on this subject i cam completely comfortable with the role Jeff Ganon played in this administration.

I'm sure the neo-nuts would explain it away as "hey, he was a prostitute so of course he did what he was asked. gay? oh he was gay? Oh. I didn't ask. Don't tell anyone".

You mindless lemmings.

hygate said...

As for the bogus argument that Democrats forced this policy on America, while Republicans fought valliantly for the defense of gay people when DADT was asked - well that is a complete fabrication of the truth

Of course no one is arguing that. The fact is that DADT is the nation’s policy, not "the military's", it was adopted through the democratic process, and the Democratic Party controlled the government when it was adopted.

It probably was about the best that could be done at the time, it is unjust, and (given the changes in American Society since 1993) the government most likely will be repealing DADT and allowing openly gay people to serve in the military in the near future.

Interestingly, I agree with downtownlad. Whether the number is 20 or 55, kicking Arabic linguists out of the military is stupid. We are at war with people who speak it and it is a very rare skill that is extremely difficult to acquire.

josef:

I didn't mean to imply that you were demonizing the military. My point was that many of the people who call DADT the "military's policy" (especially on elite college campuses) are using DADT as an excuse for keeping military recruiters (and ROTC) off campus. Until the government threatened their money supply, many elite universities were banning recruiters from their campus and “activists” continue to stage protests when they show up. I suspect that once DADT is overturned they will find some other reason why the military should be scorned.

Freder Frederson said...

Wrong. Yes, he can, and sorry, but Congress did indeed "declare war" for all legal and constitutional purposes with the passage of Public law 107-243, 116 Stat. 1497-1502, aka the Iraq AUMF.

Wrong, and Biden should know better. AG Gonzales, under oath in testimony in front of the Senate, testified that we never formally declared war on Iraq. A declaration of war is a formal diplomatic process that involves notification of ambassadors and the like. Remember that Bush and Blair promised to go back to the UN and get a second authorization before invading Iraq (which they never did). If a formal state of war existed, this would have been completely unnecessary.

The AUMF was an authorization to use military force. If the Congress had wanted to declare war it would have been called a declaration of war. It wasn't. The Congress was too spineless to exercise their constitutional duty and abdicated it to the president.

This is all of course a minor point of historical interest and doesn't address whether the invasion itself was illegal or not (the constitution doesn't say the President can't use the Army without a formal declaration of war).

But don't claim that war was declared when even the Administration doesn't make that claim.

Simon said...

Re Freder's last comment - I have to admit that Joe Biden is not exactly someone we should be taking seriously when he talks about what the Constitution does and doesn't say and permit.

Revenant said...

DTL,

The law known as "Don't Ask, Don't Tell" governs the military. The President is not in the military, and cannot be prosecuted under military law.

But that's moot, because no law has been broken. DADT doesn't make it illegal to actively hunt for homosexuals. Furthermore it does not require that the soldier admit to being gay, as the article in your "proof" link seems to think. To be subject for dismissal, a soldier must do ONE or more of the following:

(A): Engage in homosexual acts
(B): Admit to being gay
(C): Marry a member of the same sex.

The soldier in your article was dismissed for (A). That he had been quiet about his gay identity is irrelevant -- one or more people ratted him out anonymously, and the investigators then found evidence of homosexual acts.

Democrats have been actively trying to repeal this bill. Marty Meehan introduced a bill last Congress to repeal it, but it didnt' get a vote.

You forgot to mention that the bill has Republican co-sponsors.

Surely a vote on the war itself is more important

You consider a nonbinding resolution criticing the President's handling of the war to be more important than a law allowing gays to serve in the military... and you expect us to take your position on gay rights seriously? What a wanker.

Revenant said...

But don't claim that war was declared when even the Administration doesn't make that claim.

So your argument is that nothing is true unless Bush says it is? :)

I don't know if the Administration is claiming Congress declared war or not, since their opinion isn't relevant. The Constitution does not require a Declaration of War in order for the President to wage war. It says only that Congress shall have the ability to declare war. The logical reading of that is that the President needs Congress' permission to wage war with OR without an actual declaration -- the alternate reading is that the President can wage war without asking Congress at all.

But the notion that a Declaration of War was needed in order to send troops into battle is completely ridiculous -- that wasn't the standard then, now, or at any point in between.

downtownlad said...

Oh I see. So now admitting that you "like community theater" is the same thing as "f%ucking a guy up the ass." Sorry, but liking theater is not "evidence" of ass-fucking.

Gotta love the logic of those Republicans.

"On Dec. 2, investigators formally interviewed Copas and asked if he understood the military’s policy on homosexuals, if he had any close acquaintances who were gay, and if he was involved in community theater. He answered affirmatively.

But Copas declined to answer when they asked, “Have you ever engaged in homosexual activity or conduct?” He refused to answer 19 of 47 questions before he asked for a lawyer and the interrogation stopped."


And what part of "don't ask" do you not comprehend.

I realize it's hard to follow logic when your IQ is below 60, but maybe if you'd try a little - you'd see the idiocy of your arguments.

downtownlad said...

And one has to wonder why we have more people in the military going through Facebook to try and find "the gays" than we have people in the military trying to track down Osama bin Laden.

This is why I have zero confidence in this administration to fight the war on terror. Bush is doing absoluting nothing to keep my city (New York) safe. Nada.