The Brett Kimberlin Saga:

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Friday, September 10, 2010

“Permission to Speak Freely” or “Full Metal Idiocy on Don’t Ask, Don’t Tell”

So yesterday a Federal Judge, Virginia Phillips, struck down the Don’t Ask Don’t Tell (DADT) statute for military service.  Do I have to tell you this was in California?  Yeah it’s the fucking Ninth Circuit, again.  The decision is so awful it is frankly hard to know where to begin.  But let’s start with the political issue, first.  This decision can and should be laid right at the feet of Barrack Obama if this passage in the opinion is correct: “Finally, it again must be noted that Defendants called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of the Act.”

You get that?  What it implies is that the Obama administration’s lawyers took a dive.  Now I am a little cautious about believing the judge on this point, after the shenanigans Judge Walker pulled in the Proposition 8 case.  I am once bitten, twice shy, now.  But if the judge is telling the truth, once again we are seeing government officials who are charged with a duty to defend the constitutionality of any law, even laws they disagree with, making only a cursory effort to comply with that duty.

Indeed, it quotes statements of opinion by the President and Admiral Mike Mullen and treats it like an “admission” of the defendants, which strikes me as dubious.

But let’s get to the meat of the issue.

The judge rests her decision on two arguments.  The first is the right to gay sex discovered in Lawrence v. Texas.  Mind you that was a 2003 case.  So somehow for the last 200+ years we have been violating the constitution, but no one could figure that out--not even the Supreme Court--until then.  It is often said that there is nothing new under the sun.  Well, there is nothing new in the constitution, short of an amendment and certainly if you are going to discover a right that no one thought existed for some 200 years, you better have a damn good explanation how it was overlooked.

Now liberals who are knowledgable in the law might then say, “aha!  So then when about Heller v. District of Columbia and MacDonald?!  For the first time the supreme court recognized an individual right to bear arms in those cases.”  Well, there are a few differences.  The first is that the second amendment itself pretty clearly supports that right.  Indeed, the liberal position on the issue was nonsensical; there was a right to bear arms, but no actual people could do it.  Huh?  And the other thing to note is that for most of American history, there has been no serious effort to undermine that right.  I mean I don’t believe the third amendment, dealing with the quartering of soldiers, has ever been litigated, but I also believe that the rule simply hasn’t been violated, at least to the extent that anyone wanted to sue over it.  If the popular branches of the government voluntarily comply with the constitution for 200+ years, that is a good thing, not a bad thing, and it is powerful evidence of its importance.  But I digress.

Moving back to the DADT case, even on its own terms, it made no sense to apply Lawrence.  And that is plain and obvious to any lay person.  For instance, Judge Phillips writes this at one point:

Plaintiff claims the Don't Ask, Don't Tell Act violates its members' substantive due process rights, identified in Lawrence as rights associated with the "autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct."

Now, let’s read that passage in full:

Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.

You know, because that is what service in the military is all about, don’tcha know?  Its about liberty of the person!

So obviously that is bullshit.  Joining the military at this time is a voluntary act by which you submit yourself to treatment that rivals prison in its toughness.  It is not about individuality, but about making each one uniform in look and thought.

Further the judge decides that DADT is a violation of freedom of speech.  Now on the surface that actually sounds less laughable.  After all, telling is speech, as is asking.  But there is one problem with that.  Judge Virginia, can you lean in really close?  I want to whisper it to you.  The difference between this context and every other is THIS IS THE FUCKING MILITARY, YOU IDIOT.

For instance, it is very hard to square that decision with Goldman v. Weinberger.  In that decision, a Rabbi who served in the Air Force was told he could not wear a yarmulke.  I mean, that is expression, isn’t it?  In fact it is exercising one’s freedom of religion, which unlike the right to engage in gay sex, is actually in the constitution.  And indeed the clichéd request of “Permission to speak freely” demonstrates that the rest of the time your right to speak can be restrained significantly.

Indeed, one of the most damning facts is that in an 86 page opinion it is not until page 81 that the judge even acknowledges that, gee, maybe things are different in a military context.

But the really galling thing about the opinion is that it is page after page of the judge second-guessing the military, telling them that they don’t know what they are doing, and substituting her judgment of what is best for their own.  Contrast this to the concurrence written by Justice Stevens in Goldman.  In it he disagrees with Justice Brennan, who wanted to let the Jew wear his yarmulke, and then when a Sikh seeks to wear a turban, or a Rastafarian seeks to have long dreadlocks, to decide on a case by case basis whether that is too intrusive.  In rejecting that view, Stevens writes:

As the Court has explained, this approach attaches no weight to the separate interest in uniformity itself. Because professionals in the military service attach great importance to that plausible interest, it is one that we must recognize as legitimate and rational even though personal experience or admiration for the performance of the "rag-tag band of soldiers" that won us our freedom in the Revolutionary War might persuade us that the Government has exaggerated the importance of that interest.

Notice that Stevens really doubts that the military is right about the need for uniformity.  But nonetheless this very liberal justice felt he should defer to the military on this point.

And of course some of the logic is contradictory, or at least incomplete.  For instance the judge says that this makes it harder to recruit because the military is being shut out of campuses.  Now first, I wonder just how much this is going on these days.  A few years ago the supreme court said that if you exclude military recruiters from a school, the military can punish the school by taking away federal money.  The idea is, if you take our money, you have to let us in to recruit your kids.  So now the schools had to choose between that extra funding and its PC stand, I wonder how many reversed position?

But the contradictory, or at least incomplete part, is that the judge doesn’t consider how much recruiting might be hurt by gay people serving openly in the military.  If you gain one gay soldier, but lose two straight ones, how rational does DADT look, then?

The other galling thing is that the judge actually cites this as evidence of its irrationality:

Defendants' actions in delaying investigations regarding and enforcement of the Act until after a servicemember returns from combat deployment show that the Policy is not necessary to further the Government's interest in military readiness or unit cohesion

You got that?  Because the military doesn’t treat this as a Defcon 1 level emergency when they suspect a solider is gay, this means they can’t enforce it at all.  Sigh.

So all and all, a terrible and frankly infuriating decision.  But let’s not forget, that if the judge is telling the truth about the quality of the defense, this entire debacle can be rightfully laid at Obama’s feet.

And One More Thing: Let me add one more thought to this.  Yes, the judge’s decision is pretty awful, but maybe this is just an illustration of the principle of GIGO.  GIGO is a computer nerd’s acronym for “garbage in, garbage out.”  Its their way of saying that if the inputs stink, the outputs will stink, too.

In this case the inputs consisted of the Plaintiffs and their attorneys, and a half-hearted defense from the Federal Government (if Judge Phillips is to be believed).  So rather than being a serious examination of the issues that is brought out during a vigorous adversarial trial, this probably ended up being more like an echo chamber, where the anti-DADT forces were not even constructively criticized.  In that sense maybe I am being a little unfair to Judge Phillips and all the blame goes to the Obama administration.