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On DADT, it's imperial presidency time

By Adam Serwer

Adam Serwer is a staff writer at The American Prospect, where he writes his own blog.

For months, President Obama has pursued repeal of the military's discriminatory don't ask don't tell policy by the book. If the Pentagon's survey shows, as expected, that most servicemembers do not object to serving with openly gay and lesbian colleagues, and Congress refuses to act, the executive branch must.

So far, the president has done this the Obama way, slowly and deliberately appeasing all the relevant stakeholders. He brought the military leadership on board, he asked Congress to repeal the policy legislatively, and his administration has defended the policy in court despite publicly acknowledging that DADT is harmful to national security. Senate Republicans are blocking repeal, and they are likely to continue to do so regardless of what the military's internal survey shows. If Republicans choose to play same role as dead-end segregationists in the 1950s and 60s, utilizing the filibuster to deny rights to a minority based solely on their own arbitrary prejudice or shallow procedural concerns, the president would be under no obligation to continue pursing DADT repeal through Congress.

In particular, Sen. John McCain (R) of Arizona seems determined to go down in history as the Richard Russell of gay rights, attempting to strip DADT repeal from the Defense Authorization Act much as Russell once tried to prevent Harry Truman from desegregating the military. When the reporters who fawned over him for two presidential campaigns are dead, all that history will remember of his political legacy, beyond introducing the country to Sarah Palin, will be this disgraceful footnote.

If Republicans continue to block DADT repeal from even coming to a vote, the president should take a page from Truman and end the policy through an executive order advising the military not to enforce the policy and cease defending it from challenges in court. The military's own empirical studies show allowing gays and lesbians to serve does not hurt military effectiveness, and the military's own policy of occasionally delaying DADT investigations of deployed troops confirms that finding. The military in Truman's time was deeply opposed to integration, and if he had waited for a favorable political climate to act desegregation might not have occurred for decades.

During the Bush years, liberals complained about his "imperial presidency," and so the idea that Obama should simply end the policy by fiat would seem hypocritical. But the use of an executive order to end a policy a majority of Americans, including conservatives, want to end, is no more undemocratic than Republicans' use of procedural maneuvers to thwart an up or down vote. Republicans holding the legislative process, and the fundamental rights of gay and lesbian servicemembers, hostage to their own homophobic prejudices, would still be the greater act of tyranny.

The president has met his political promise to the military to allow them to do this at their own pace. He has fulfilled his constitutional obligation as president to defend in court even the laws he disagrees with. If Republicans successfully strip repeal from the bill, or continue to prevent the matter from coming to a vote, then Obama has every right to handle this Truman's way.

By Adam Serwer  | November 9, 2010; 10:48 AM ET
Categories:  2010 elections, House Dems, Senate Dems, gay rights  
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Next: More on that coming "compromise" on the Bush tax cuts

Comments

LOL!!! Too bad Obama's going to continue to disappoint teh gays on this. Adam Serwer, are you teh gay?

Posted by: JakeD2 | November 9, 2010 10:55 AM | Report abuse

"Imperial Presidency" IOKIYAD!

Posted by: JakeD2 | November 9, 2010 10:58 AM | Report abuse

The issue is that DADT is a LAW, not an executive order

If you check the Constitution, Congress has to repeal a law.


Thank you

Posted by: BeautifulBeginning | November 9, 2010 11:05 AM | Report abuse

Adam, I have to assume that somebody in the Administration (or several somebodies) is responsible for reading and summarizing blogs just like they do newspapers, magazines, and other news outlets. I sure hope that that somebody raises this piece to the highest levels, and that the Administration pays attention to it. Well written--thank you!!

Posted by: Michigoose | November 9, 2010 11:06 AM | Report abuse

This should be a fun thread!

Posted by: JakeD2 | November 9, 2010 11:06 AM | Report abuse

BeautifulBeginning:

The fascinating thing is that the really think Bush ordering waterboarding to prevent terrorist attacks on Heathrow Airport and Canary Wharf is worse than Obama using the same "Imperial Presidency" to validate their deviant social experiment. It's amazing really.

http://www.thetimes.co.uk/tto/public/article2800028.ece

Posted by: JakeD2 | November 9, 2010 11:09 AM | Report abuse

"In an exclusive interview with The Times, the former US President offered a vigorous defence of the coercive interrogation technique: “Three people were waterboarded and I believe that decision saved lives.” He denied that waterboarding, which simulates drowning, amounted to torture.

Asked if he authorised the use of waterboarding to get information from the captured al-Qaeda leader Khalid Sheikh Mohammed, he was unequivocal: “Damn right!”

In his new book he writes: “Their interrogations helped break up plots to attack American diplomatic facilities abroad, Heathrow airport and Canary Wharf in London, and multiple targets in the United States.”

Posted by: JakeD2 | November 9, 2010 11:11 AM | Report abuse

Drop the appeal, yes. But direct the Armed Services to ignore a federally enacted statute? One that Congress has the exclusive right to enact, given its Constitutional power to "make rules for the government and regulation of the land and naval forces"?

Why wouldn't that be unconstitutional? Truman had no law to circumvent.

Posted by: andrewlong | November 9, 2010 11:11 AM | Report abuse

andrewlong:

IOKIYAD!

Posted by: JakeD2 | November 9, 2010 11:14 AM | Report abuse

Jake

The liberals appear willing to violate the Constitution in order to achieve their agenda.

It is a problem. The reconciliation bill is one example.

This is getting ridiculous.


Obama is still supporting the big banks in the foreclosure process.

In addition, the nation STILL does not have an ECONOMIC plan from Obama and the democrats.


I'm glad that Obama is dancing with children in Asia, however.


The nation NEEDS ECONOMIC LEADERSHIP.

.

Posted by: BeautifulBeginning | November 9, 2010 11:15 AM | Report abuse

Jake

Interesting exchange on Morning Joe this morning - Joe Scarborough contrasted the waterboarding issue with Obama's drones.

Joe's point was: there is collateral damage with the drone attacks, and no possibility of due process. Joe used an example of a little girl who could get caught in one of Obama's drone attacks.


In contrast, waterboarding is focused on the individual - there is no collateral damage or innocent people getting killed in the process.

In addition, in waterboarding information is obtained to prevent terrorist attacks.

In Obama's drone attacks, no information is obtained, and attacks may go forward after an attack - with little chance of being prevented.


So Mika Brezenski was UNABLE OR UNWILLING to take up this SIMPLE POLICY DECISION.


It is a policy decision - and it really is a choice.


However, the liberals are so pathetically blinded by their partisan motivations, they refuse to even discuss these policy decisions.

The liberals are unfit to govern, it is that plain and simple.

Posted by: BeautifulBeginning | November 9, 2010 11:27 AM | Report abuse

BeautifulBeginning:

Agreed. "Most" liberals appear willing to violate the Constitution in order to achieve their agenda.

In addition, the nation STILL does not have an ECONOMIC plan from Obama and the democrats.

Obama is dancing with children in Asia, but his plans to visit the mosque are on hold due to the volcano ; )

In January, the adults take over.

Posted by: JakeD2 | November 9, 2010 11:29 AM | Report abuse

And the defense of torture continues. When waterboarding was used during the Spanish Inquistion, the perpetrators weren't doing it because it wasn't torture. And that it saved lives is still unproveable.

Posted by: cao091402 | November 9, 2010 11:33 AM | Report abuse

In addition, per OLC memos, waterboarding did NOT violate the Constitution ; )

Posted by: JakeD2 | November 9, 2010 11:34 AM | Report abuse

Obama should get an Economic plan together before the liberals start talking about pushing more of the liberal agenda down the throats of America


The liberal agenda has been defeated and rejected.

The Republicans have the mandate now, not the liberals.


.

Posted by: BeautifulBeginning | November 9, 2010 11:35 AM | Report abuse

Jake

On the other thread, you produced a document from some Japanese person

It appears to imply that such a document could be obtained by anyone on a simple affadavit.

Perhaps this procedure was adopted by the Territory Government of Hawaii because there were not birth certificate available for everyone in the early Territorial history.

So, if this procedure survived, is it possible that a simple affadavit was all that was required for Obama to get the document he got - and NOT ACTUAL PROOF ?

Is that way the contents of the file are being hidden?

Posted by: BeautifulBeginning | November 9, 2010 11:46 AM | Report abuse

Jake

On the other thread, you produced a document from some Japanese person

It appears to imply that such a document could be obtained by anyone on a simple affadavit.

Perhaps this procedure was adopted by the Territory Government of Hawaii because there were not birth certificate available for everyone in the early Territorial history.

So, if this procedure survived, is it possible that a simple affadavit was all that was required for Obama to get the document he got - and NOT ACTUAL PROOF ?

Is that why the contents of the file are being hidden?

Posted by: BeautifulBeginning | November 9, 2010 11:47 AM | Report abuse

cao,

Don't bother--it's an echo chamber right now. . .

Posted by: Michigoose | November 9, 2010 11:53 AM | Report abuse

Cao

What Obama is doing now - attacking with drones - is worse.


First, other people who are innocent get caught in the attack and die.

With what Obama is doing, no information is obtained -

Without information, terrorist attacks in the pipleine can not be prevented.

And with drone attacks, there is no chance at due process - or any other of Obama's insane legal procedures which may give up important intelligence to the enemey.


_____________________


In response, many liberals respond to these points with arrogance and a complete lack of engagement - mirroring their lack of engagement with reality.

.

Posted by: BeautifulBeginning | November 9, 2010 12:05 PM | Report abuse

All, more on the idiocy of the coming "compromise" on the Bush tax cuts:

http://voices.washingtonpost.com/plum-line/2010/11/orrin_hatchs_idea_of_a_comprom.html

Posted by: Greg Sargent | November 9, 2010 12:07 PM | Report abuse

The practice of comparing special rights for persons of sexual disorientation with racially based, civil rights is a phoney one.

Homosexuality is a psycho/physical disorder which is an abnormal human condition. The military has all kinds of restrictions on people with less than perfect physical and mental conditions and nobody objects to them.

Obama and the Pelosites were almost destroyed in the mid-terms because they insisted on persuing these phoney agendas that mainstream Americans objected to.

When the Obamaniacs seem more interested in illegal aliens and homosexuals than in America with a 10% unemployment rate, bad things are bound to happen, to Obama.

Posted by: battleground51 | November 9, 2010 12:13 PM | Report abuse

Someone directly asked the President about an executive order on DADT during the MTV event last month. His response was that Congress had to repeal it, since they had enacted a law on the issue. That meant that he could not do as Truman did in desegregating the military. I got the impression he'd seen legal analysis of the issue, which would not surprise me. I haven't seen anything in the media directly addressing the legal parameters of the issue, however.

Posted by: reach4astar2 | November 9, 2010 12:16 PM | Report abuse

"Homosexuality is a psycho/physical disorder which is an abnormal human condition."

That view has been widely rejected by the medical community.

"The military has all kinds of restrictions on people with less than perfect physical and mental conditions and nobody objects to them."

Yes, and those physical and mental conditions are restricted because they impact a soldiers ability to perform a job or carry out a mission. Is there any evidence that homosexual solidiers perform more poorly than heterosexual soldiers?

"Obama and the Pelosites were almost destroyed in the mid-terms because they insisted on persuing these phoney agendas that mainstream Americans objected to."

The majority of Americans, both in and out of the military, support ending DADT. Why are Republicans forcing their position down our throat?

Posted by: ashotinthedark | November 9, 2010 12:19 PM | Report abuse

"In particular, Sen. John McCain (R) of Arizona seems determined to go down in history as the Richard Russell of gay rights, attempting to strip DADT repeal from the Defense Authorization Act much as Russell once tried to prevent Harry Truman from desegregating the military"

Don't you mean Richard Russell (D) ? As Russell was a lifelong Democrat, after all, and it's a lot less likely the casual reader would know that Russell was a Dem than would be entirely aware that McCain was an (R).

"When the reporters who fawned over him for two presidential campaigns are dead, all that history will remember of his political legacy, beyond introducing the country to Sarah Palin, will be this disgraceful footnote."

They also might recall his heroic service in Vietnam, the whole POW thing, and his involvement with the Keating 5.

Posted by: Kevin_Willis | November 9, 2010 12:22 PM | Report abuse

Obama is going about this matter in the correct way. It's a legislative process.

Homosexuals prefer a dictator's decree or changing established law by judicial fiat.

Very UNdemocratic of them, I must say.

Posted by: battleground51 | November 9, 2010 12:32 PM | Report abuse

But, according to Adam Serwer (is he teh gay?), most servicemembers do not object to serving with openly gay and lesbian colleagues, and Congress refuses to act, so the executive branch must act -- in fact, John McCain in the one standing in the way of "democracy" -- therefore, a unilateral executive order to end a policy that a majority of Americans, including some so-called conservatives, want to end, is not undemocratic at all. Republicans holding the legislative process, and the fundamental rights of gay and lesbian servicemembers, hostage to their own homophobic prejudices, would still be the greater act of tyranny.

Posted by: JakeD2 | November 9, 2010 12:44 PM | Report abuse

Obama is going about this matter in the correct way. It's a legislative process.

Homosexuals prefer a dictator's decree or changing established law by judicial fiat.


Posted by: battleground51

------------------------------------

Either that or they recognize that change isn't going to happen anytime soon at the Congressional level, so they are looking for other ways to get it done. Too bad for them it appears unconstitutional for Obama to do it so they either have to way for Republicans to change their minds of get a judge to rule DADT to be unconstitutional. Which, by the way, would be perfectly acceptable under our Constitution. Well, assuming you agree with the concept of judicial review.

Posted by: ashotinthedark | November 9, 2010 12:44 PM | Report abuse

DADT is one of Bill Clinton's greatest achievements and a large part of his legacy.

The homosexual agenda was a thorn in Clinton's side just as it is for Obama. Clinton was able to strike a compromise with the conservatives of the time in a masterful stroke of bipartisanship and the result is DADT.

Homosexuals are free to be in the military as long as they leave their disfunctional, homosexual baggage behind. That is a good and fair compromise.

This will allow homosexuals to serve their country and prevent America's military services from becoming homosexual enclaves similar to what happened to the Catholic priesthood some years ago.

Homosexuals running rampant in the priestly ranks nearly destroyed the Catholic church.

The church is still paying out multiple millions of dollars in reparations to thousands of previously molested boys and boys who have grown into manhood with psychological damages.

Posted by: battleground51 | November 9, 2010 12:51 PM | Report abuse

As some of you are aware, homosexuals are statutorily DQd to serve, and DADT is, in effect, a regulatory end run around the statute.

The Admin, if it thinks the DQ is unconstitutional, could withdraw its support of the statute in court. If it thinks the DQ is constitutional, it must defend it.

An executive order to the military to disregard the statute would be inconsistent with defending it on appeal.

Posted by: mark_in_austin | November 9, 2010 1:38 PM | Report abuse

During the first Gulf War, President Bush invoked a “stop-loss” order allowing the
suspension of discharge proceedings, which was applicable to those facing separation for retirement, homosexuality and other reasons.

Stop-loss is a power given to the President (and, by extension, to his cabinet) in
Title 10 of the United States Code, Section 673c, allowing him to suspend many kinds of legal and administrative actions in the military that relate to promotion and separation if deemed necessary in a national defense crisis. See the full story here:

http://www.palmcenter.org/files/active/0/RESEARCH%20NOTE%20on%20Gays%20Serving%20and%20Stop%20Loss.pdf

So, the President could invoke a stop loss order to halt discharges. In addition, the DADT statute has been declared UNCONSTITUTIONAL by the federal district court. That finding has not been reversed (only enforcement of the judge's injunction has been halted by the 9th Circuit). So the President could drop the DOJ appeal to the 9th Circuit and allow the district court's decision to stand (along with her injunction baring enforcement of DADT worldwide).

I don't understand why John McCain won't let the U.S. Senate vote on this issue. Why is he so determined to deny a vote? He is worse than any single activist judge.

The U.S. Senate should Vote Now!

Posted by: Truthseeker_Too | November 9, 2010 4:17 PM | Report abuse

Unless I'm missing something, the president doesn't have the authority to end the policy through an executive order in the way that Truman did because Congress changed the rules of the road by enacting legislation during the Clinton years that took that discretion away...and as part of which they imposed the DADT rule that relaxed the ban. That's why Obama has been trying to build support among the military brass in the hope that their sign off will convince Republicans to vote with Dems in favor of repeal. He was slow in doing this so he better hope the courts can solve this for him or that the military review will convince Repubs to finally end the rule -- getting rid of DADT has popular support in the country and even many Repubs (not just log cabin crowd) are embarrassed by their party's position on this, so there is some chance the vote will go their way.

Posted by: wswest | November 9, 2010 4:47 PM | Report abuse

"most servicemembers do not object to serving with openly gay and lesbian colleagues"

Most people in Georgia want prayer in public school.

Most people in Texas do not want abortions to be legal.

Majority rule doesn't work on personal rights. Everyone knows that it is illegal to force a person to be naked in front of anyone who could become sexually or romantically attracted to him or her.

We need a bold, courageous judge to decree that the military must build private areas for each soldier to sleep, bathe, and dress. The judge can decree it. Halliburton can build it. Congress can add it to its deficit.

Posted by: blasmaic | November 9, 2010 5:06 PM | Report abuse

Homosexuality is a psycho/physical disorder which is an abnormal human condition.

Posted by: battleground51 | November 9, 2010 12:13 PM | Report abuse

---

Gee, BG. Do you have a medical degree? Because you're making a diagnosis that is nowhere to be found in my copy of DSM IV.

BB

Posted by: FairlingtonBlade | November 9, 2010 5:13 PM | Report abuse

"most servicemembers do not object to serving with openly gay and lesbian colleagues"

Most people in Georgia want prayer in public school.

Most people in Texas do not want abortions to be legal
----------------------------------------

You don't see any difference between the first statement and the last two?

The Constitution prohibits the prayer and protects abortion, which is why popular opinion doesn't carry the day.

There is no Constitutional prohibition against homosexuals openly serving in the military. So your examples are inapplicable.

The purpose of pointing out that service members don't oppose homosexuals openly serving (FYI they are already serving, just no openly) is to rebut the arguments that the military and public opposes this and that repealing DADT would lead to all sort of problems within the military because of opposition.

Posted by: ashotinthedark | November 9, 2010 6:16 PM | Report abuse

ashotinthedark, you can't force heterosexual men and women to shower naked together. That's because people have basic human rights, like the right to privacy.

Sure there are gays and lesbians serving in the military today... as heterosexuals. The government cannot force a male heterosexual to be naked in front of anyone who could develop a sexual or romantic interest in him. If a gay acts openly gay and violates a person's right to privacy, then the gay must be discharged. That's the compromise.

If gays and lesbians want to serve, that's okay by me. They just need a judge to decree that the military build private sleeping, bathing, and dressing areas for each recruit and soldier.

Fairness is what is fair to all.

Posted by: blasmaic | November 9, 2010 6:25 PM | Report abuse

Over 70% of Americans support a repeal of Don't Ask Don't Tell.

If this is a "liberal agenda" then that would be 70% of Americans are liberal.

This isn't an agenda at all, but the will of the American people. The military works for the people, not the other way around. Last I checked, we all vote for the Commander in Chief of the military, which clearly shows that we have a say in how the military works.

If the people have no voice in the military, then we live in a Military Dictatorship. What is there to stop the military from turning on the people, attacking us and taking over the country one state at a time? The fact that they don't make the rules, we the people do. The fact that we vote for the person who tells the military what to do.

Over 70% of Americans want to see Don't Ask Don't Tell repealed, get rid of it.

Posted by: paulflorez | November 9, 2010 8:14 PM | Report abuse

"Over 70% of Americans want to see Don't Ask Don't Tell repealed, get rid of it."

Should we likewise restore prayer in public school and ban abortion where majorities favor these actions too?

Personal rights have nothing to do with majority rule.

Posted by: blasmaic | November 9, 2010 9:53 PM | Report abuse


Interest rates are simply incredible on mortgages right now. It's not uncommon to see 30 year rates down in low fours and 15 year rates in the threes. Week after week, the rates keep dropping If you are looking for rates in three then search online for "123 Mortgage Refinance"

Posted by: alexpablo | November 10, 2010 4:39 AM | Report abuse

"The government cannot force a male heterosexual to be naked in front of anyone who could develop a sexual or romantic interest in him."


What? You can't be serious. The government is presently "forcing" men (some of whom are gay) to shower naked together. Which you are apparently fine with. You are only opposed to the government "forcing" men to shower with openly gay men. Where in the Constitution do you find support for the former but not the later?
-----------------------------------------
"If a gay acts openly gay and violates a person's right to privacy, then the gay must be discharged. That's the compromise."


What is acting openly gay? How does openly acting gay violate a person's right to privacy while openly acting heterosexual does not?

Posted by: ashotinthedark | November 10, 2010 8:24 AM | Report abuse


The government is presently "forcing" men (some of whom are gay) to shower naked together. Which you are apparently fine with. You are only opposed to the government "forcing" men to shower with openly gay men.

Posted by: ashotinthedark | November 10, 2010 8:24 AM | Report abuse

--------------

Heterosexual men are not forced to sleep, bathe, and dress in areas where homosexual men perform these activities. That's becuase of DADT. If you T (tell) or reveal your gay orientation, then you are discharged, albeit honorably. So, no, heterosexual men are not forced to shower with gays as it is.

Posted by: blasmaic | November 10, 2010 8:50 AM | Report abuse

Heterosexual men are not forced to sleep, bathe, and dress in areas where homosexual men perform these activities. That's becuase of DADT. If you T (tell) or reveal your gay orientation, then you are discharged, albeit honorably. So, no, heterosexual men are not forced to shower with gays as it is.
-------------------------------------

Whether they serve openly or not, there are homosexuals serving in the military right now and therefore, men are forced to shower, sleep etc with them. Your argument about "rights" rests on the completely made up Constitutional distinction between openly serving and not openly serving.

I'll take your lack of case law as an acknowledgment that there is no support for the notion that the government can force heterosexual men to bathe, sleep etc with/near other heterosexual men, but not homosexual men.

Posted by: ashotinthedark | November 10, 2010 2:00 PM | Report abuse

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