President Obama rebutted by his own Justice Department on DADT

Timothy Kincaid

April 13th, 2010

The Log Cabin Republicans are the plaintiffs on one of the few active cases opposing the legality of the Military’s Don’t Ask, Don’t Tell policy. And they have developed approaches that other plaintiffs more sympathetic to the President might not have employed.

One method was to try and establish that the Justice Department’s arguments were in direct contradiction with positions articulated by the President. This two-pronged approach either leaves the DOJ without much defense for an obviously discriminatory law, or embarrasses and pressures a President who is increasingly seen as having campaigned on promises that he has little interest in keeping.

And yesterday they were successful.

Log Cabin had been attempting to get the DOJ to answer yes or no questions so as to be on the record about whether the policy was bad for national defense. Obviously, if the Justice department admits that the policy is counter-productive, then there is little basis to defend it. So the DOJ fought having to answer.

But finally, after a direct order from the judge, they have stated their opinion. And their Response to Request for Admissions admits that the Obama Administration’s Department of Justice is basing their defense on arguments that completely contradict statements made by President Obama both in meetings with the gay community and in his State of the Union address.

They try to quibble that the Executive and Legislative Branches are in disagreement. They state that they are compelled to defend the law even if the Executive wishes it repealed.

And that may be correct. But they are not compelled to take specific factual conclusions that are contradictory to those espoused by the Executive Branch and yet that is exactly what they are doing.

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Address on January 27, 2010, that 10 U.S.C. § 654, the statute enacting “Don’t Ask Don’t Tell” (“DADT”), should be repealed.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.”

But nonetheless, their answers are:

3. Admit that DAD’T 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.

As a matter of legal fact, the Obama Adminstration’s Department of Defense has stated that the President was not speaking the truth. As Dan Woods, a partner at White & Case, Log Cabin’s law firm put it

Using President Obama’s exact words, Log Cabin’s lawyers then asked the government to admit that what the President said was true. Justice Department lawyers objected, Log Cabin filed and won a motion to compel the government to answer the questions, the government appealed, and the court rejected the appeal. Consequently, on Monday, April 12, 2010, the government finally had to answer the questions and, when the Justice Department lawyers answered, they denied the truth of what the President had said.

This puts the President in a difficult position. He is talking out of both sides of his mouth. His Department of Justice speaks for him. It makes legal arguments that are consistent with the principles and factual conclusions of his administration.

Which is it, Mr. President?

Tim

April 13th, 2010

This is even worse that it seems. There is a third option a party has in responding to Requests for Admission. You can say that you lack information sufficient to admit or deny. Basically, you are saying you can’t form a conclusion b/c all of the facts aren’t in.

Since in this case, there is a difference of opinion among military leaders and b/t the Legislative and Executive branches, the DOJ could have responded in this manner w/o jeopardizing their case. (DOJ doesn’t have to prove that the policy is good, only that Congress could reasonably believe that it was good.)

But they didn’t. They gave a straight-up denial even though they didn’t have to. So it is a very deliberate slap in the face.

TampaZeke

April 13th, 2010

Am I going to burn in gay hell for all eternity for loving the Log Cabin Republicans right now?

Ben in Oakland

April 13th, 2010

Of course they can go both ways at the same time. Those kenyans are wily. Like the red queen, they can bleieve six impossible things before breakfast.

Lindoro Almaviva

April 13th, 2010

somewhere in the White Hose there is a president sitting on some ice to ease the pain of being kicked in the balls with a pair of steel-toed boots.

Ben in Oakland

April 14th, 2010

OFAMA– our fierce advocate, my ass.

paul j stein

April 14th, 2010

Well, President Obama is a POLITITIAN. Did we all forget that?

Steve

April 14th, 2010

I can’t help wondering what the internal dynamics are at DOJ.

Have burrowed-in Bush political appointees held onto the reins, at odds with superiors who are reluctant to appear overly political?

Grant

April 14th, 2010

Kudos to Log Cabin. They done good.

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