Of all the possible reasons to repeal Don’t Ask, Don’t Tell, Secretary of Defense Robert Gates offered the worst on Tuesday. According to Gates, Congress must act before a judge acts for it.
As the Pentagon released its long-anticipated report blessing a repeal, Gates warned that there is a “very real possibility that this change would be imposed immediately by judicial fiat.” If that “disruptive and damaging scenario” occurred, it would be “most hazardous to military morale, readiness, and battlefield performance.”
This is blackmail via judicial imperialism. Gates perhaps spoke better than he knew when he referred to “judicial fiat.” That phrase describes perfectly the September ruling of federal district judge Virginia Phillips in California that DADT was unconstitutional and that its enforcement had to be suspended immediately by the military. This was so outrageous that even the notoriously liberal Ninth Circuit countermanded her and allowed the military to continue the policy while the lower-court ruling is being appealed.
Secretary Gates might have a little less to fear from the courts if the administration he serves were truly interested in defending the policy from legal assault. All indications are that the Department of Justice has chosen to make a deliberately weak case for the law’s constitutionality. Phillips observed that in the course of the DADT trial, DOJ “called no witnesses, put on no affirmative case, and only entered into evidence the legislative history of [DADT].” President Obama, of course, wants the policy repealed — but that doesn’t mean it’s unconstitutional. If his administration believes it is unconstitutional, it should say so rather than engage in a sham defense. As it is, it is abetting the war against the policy in the court and then turning around and telling Congress it must act immediately because things look so grim in the courts. This is cynical even by the standards of the administration of hope and change.
The Pentagon report itself is being portrayed as a slam-dunk case for ending the policy. It concludes that repeal wouldn’t harm the military and adduces widespread support for that proposition in the ranks. But the report’s survey found that nearly 60 percent of combat Marines and 50 percent of Army troops expressed concern that working with an openly gay or lesbian colleague could have negative or very negative effects. These are the troops on the frontlines and often in the pressure cooker of combat, whose views should weigh most heavily. No doubt many of them are puzzled as to why this social change has to happen right now, in the midst of two wars of counterinsurgency.
The administration hopes to pass repeal through the lame-duck session to avoid dealing with five more Republican votes in the new Senate, not to mention the Republican majority in the House. In its rush, it’s using any argument at hand, including the new Gates Doctrine: Preemptively capitulate to liberal judges lest they make a hash of things by unilaterally imposing their will. That’s obviously not how legislators in a self-governing society should go about their business. Don’t Ask, Don’t Tell must stay or go on its merits as determined by our elected representatives. Shame on Robert Gates for suggesting otherwise.