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April 14, 2010

Obama vs. DOJ on DADT

President Obama's recent pronouncements on the gays-in-the-military policy put the Department of Justice in a tight spot. DOJ is defending Don't Ask, Don't Tell in the courts right now, in keeping with its long tradition of defending all laws so long as a reasonable argument can be made as to their constitutionality, regardless of who is in the White House.

Log Cabin Republicans are the plaintiffs in one of those cases and have forced DOJ to explicitly reject Obama's statements. DOJ had resisted making a fast and sure statement, and continues to object since its attempt to get an interlocutory appeal failed, but finally had to comply when the judge ordered them to make a "yes or no" answer.

Here is DOJ's response (PDF). It's short, but I've pulled out the most relevant bits:

The Court's Order has placed Defendants in an untenable position. Counsel in this litigation represents the United States. However, the Executive and Legislative Branches have yet to express a unified position on the subject matter of Plaintiff's RFAs. For these reasons, it is Defendant's position that providing a single-word, unqualified answer in response would be inaccurate, incomplete, and inconsistent with the mandatory provisions of Rule 36(a)(4).

The President of the United States, who formulates the policy of the Executive Branch, has stated, including in his State of the Union Address on January 27, 2010, that 10 U.S.C. § 654, the statute enacting "Don’t Ask Don’t Tell" ("DADT"), should be repealed. The President has further said that DADT does not contribute to, and indeed weakens our national security, and he has stated that "[w]e cannot afford to cut from our ranks people with the critical skills we need to fight any more than we can afford – for our military’s integrity – to force those willing to do so into careers encumbered and compromised by having to live a lie."

The Court's order does not permit the United States to provide an answer that, in good faith, "specif[ies] the part admitted and qualif[ies] or den[ies] the rest," Fed. R. Civ. Proc. 36(a)(4), in view of the disagreement bewteen the Executive Branch's view as articulated in 2010 and Congress' view as articulated in its 1993 enactment of [DADT].

Given that disagreement, the United States has no choice but to deny, for the purposes of this litigation, the requests for admission noted below, while recognizing that those denials do not reflect the positions articulated by the President.

3. Admit that DADT does not contribute to our national security.

Response: Deny.

4. Admit that DADT weakens our national security.

Response: Deny.

5. Admit that discharging members pursuant to DADT weakens our national security.

Response: Deny.

In short, DOJ just called Obama a liar.


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posted by Gabriel Malor at 01:36 PM

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