The Volokh Conspiracy - Don't Ask, Don't Tell, Don't Repeal, Don't Defend:

In today's WSJ, Brian Hughes, a former Army Ranger twice awarded the Commendation Medal, makes a powerful case for ending "Don't Ask, Don't Tell":

I was a line infantryman in the Army's Ranger regiment from 2000-04, earning a promotion to sergeant within three years. In that time, my platoon performed dozens of combat missions on the front lines. Our lives depended on complete mutual trust.

Several of my colleagues knew I was gay. We lived in the closest possible conditions. When there were showers, we showered together. When we were out overnight on the cold, bare mountains of Afghanistan, we slept huddled together for warmth. It should go without saying that there was nothing remotely sexual about these situations. We had uncomfortable experiences — we were at war, after all — but my buddies were never uncomfortable with me.

The reason I didn't come out to more of my comrades wasn't out of concern for morale. I was worried about losing my job.

Since "Don't Ask, Don't Tell" came into effect, some 13,000 service members have been fired for being gay. Thousands more decided against pursuing a full career in the military and let their contracts expire. Replacements can be recruited and trained — at a cost of more than $36 million per year — but each individual's institutional knowledge is lost, to the detriment of the unit and the mission. . . .

Straight and gay soldiers have been fighting side by side in Afghanistan, Iraq and beyond without incident. More than 20 of our closest allies have integrated gays into their ranks, including all of NATO except Turkey. American troops work and live with these forces without incident.

Here at home, every government service is integrated, including the paramilitary sections of the CIA that work hand in glove with the armed services. The presence of gays in these organizations is a nonissue. The idea that our soldiers, sailors, airmen and Marines would have any greater difficulty adjusting is an insult to their professionalism.

As a candidate, Barack Obama promised to repeal "Don't Ask, Don't Tell." As President, he has not lifted a finger to overturn the ban. This is disappointing. As Hughes notes, public opinion is strongly against the policy, and there is real reason to believe that, if anything, maintaining the exclusion on openly gay servicemen and women compromises our security and defense.

At the same time the Obama Administration has not taken any steps to reverse the policy, it is simultaneously neglecting to defend existing policy, as embodied in a federal statute, in court. As the WSJ reported earlier this week, the Administration failed to file a petition for certiorari to challenge a decision of the U.S. Court of Appeals for the Ninth Circuit that held the military's policy should be subjected to intermediate scrutiny. The decision prompted a vigorous dissent from denial of en banc, and could eventually result in the invalidation of the law. As Ed Whelan notes, last year the Justice Department argued that the Ninth Circuit's decision "creates an inter-circuit split, . . . a conflict with Supreme Court precedent, and an unworkable rule that cannot be implemented without disrupting the military." Now, however, the Solicitor General's office has decided not to file cert on the grounds that it's an interlocutory decision. So, as a consequence, the military will have to defend a policy that the Administration opposes under a more rigorous standard of review than may be warranted under current law (and leaves in place a highly contestable precedent that were certainly affect additional cases in the Ninth Circuit for some time).

It seems to me that the Obama Adminsitration has it wrong on both counts. The Administration should ask Congress to repeal the law. We don't need to lose any more Daniel Chois. But until the law is repealed — and I am assuming that the Administration cannot end the policy unilaterally through an administrative edict — the Justice Department has an obligation to defend the laws that are on the books, particularly where they concern the military. Perhaps the argument for leaving this "interlocutory" opinion in place is more powerful than I recognize, but I am skeptical. It seems to me the Administration is ducking a controversy, perhaps even hoping that the courts will do its dirty work to end the law. Our military and servicemen and women deserve better. Even if one opposes "Don't Ask, Don't Tell" — as I do — one should not want military personnel policy run by the courts.

UPDATE: Brian Hughes e-mails:

Prof. Adler: Thank you for featuring my article. There was some interesting and profitable discussion before the flame war broke out.

I would like to clarify one thing (column space in the WSJ is limited): I was not discharged under Don't Ask, Don't Tell. I served out my four-year contract and was honorably discharged when I chose not to re-enlist.

Aside from changing a pronoun here and there when my buddies and I would discuss our sex lives, DADT did not affect me nearly as much as it has others. I would not be speaking out against it if I were not firmly convinced that it is detrimental to our national security.

Note: Due to the aforementioned flame war, I closed the comments to this thread.

	[Jonathan Adler, May 21, 2009 at 9:44am] Trackbacks Don't Ask, Don't Tell, Don't Repeal, Don't Defend: In today's WSJ, Brian Hughes, a former Army Ranger twice awarded the Commendation Medal, makes a powerful case for ending "Don't Ask, Don't Tell": I was a line infantryman in the Army's Ranger regiment from 2000-04, earning a promotion to sergeant within three years. In that time, my platoon performed dozens of combat missions on the front lines. Our lives depended on complete mutual trust. Several of my colleagues knew I was gay. We lived in the closest possible conditions. When there were showers, we showered together. When we were out overnight on the cold, bare mountains of Afghanistan, we slept huddled together for warmth. It should go without saying that there was nothing remotely sexual about these situations. We had uncomfortable experiences — we were at war, after all — but my buddies were never uncomfortable with me. The reason I didn't come out to more of my comrades wasn't out of concern for morale. I was worried about losing my job. Since "Don't Ask, Don't Tell" came into effect, some 13,000 service members have been fired for being gay. Thousands more decided against pursuing a full career in the military and let their contracts expire. Replacements can be recruited and trained — at a cost of more than $36 million per year — but each individual's institutional knowledge is lost, to the detriment of the unit and the mission. . . . Straight and gay soldiers have been fighting side by side in Afghanistan, Iraq and beyond without incident. More than 20 of our closest allies have integrated gays into their ranks, including all of NATO except Turkey. American troops work and live with these forces without incident. Here at home, every government service is integrated, including the paramilitary sections of the CIA that work hand in glove with the armed services. The presence of gays in these organizations is a nonissue. The idea that our soldiers, sailors, airmen and Marines would have any greater difficulty adjusting is an insult to their professionalism. As a candidate, Barack Obama promised to repeal "Don't Ask, Don't Tell." As President, he has not lifted a finger to overturn the ban. This is disappointing. As Hughes notes, public opinion is strongly against the policy, and there is real reason to believe that, if anything, maintaining the exclusion on openly gay servicemen and women compromises our security and defense. At the same time the Obama Administration has not taken any steps to reverse the policy, it is simultaneously neglecting to defend existing policy, as embodied in a federal statute, in court. As the WSJ reported earlier this week, the Administration failed to file a petition for certiorari to challenge a decision of the U.S. Court of Appeals for the Ninth Circuit that held the military's policy should be subjected to intermediate scrutiny. The decision prompted a vigorous dissent from denial of en banc, and could eventually result in the invalidation of the law. As Ed Whelan notes, last year the Justice Department argued that the Ninth Circuit's decision "creates an inter-circuit split, . . . a conflict with Supreme Court precedent, and an unworkable rule that cannot be implemented without disrupting the military." Now, however, the Solicitor General's office has decided not to file cert on the grounds that it's an interlocutory decision. So, as a consequence, the military will have to defend a policy that the Administration opposes under a more rigorous standard of review than may be warranted under current law (and leaves in place a highly contestable precedent that were certainly affect additional cases in the Ninth Circuit for some time). It seems to me that the Obama Adminsitration has it wrong on both counts. The Administration should ask Congress to repeal the law. We don't need to lose any more Daniel Chois. But until the law is repealed — and I am assuming that the Administration cannot end the policy unilaterally through an administrative edict — the Justice Department has an obligation to defend the laws that are on the books, particularly where they concern the military. Perhaps the argument for leaving this "interlocutory" opinion in place is more powerful than I recognize, but I am skeptical. It seems to me the Administration is ducking a controversy, perhaps even hoping that the courts will do its dirty work to end the law. Our military and servicemen and women deserve better. Even if one opposes "Don't Ask, Don't Tell" — as I do — one should not want military personnel policy run by the courts. UPDATE: Brian Hughes e-mails: Prof. Adler: Thank you for featuring my article. There was some interesting and profitable discussion before the flame war broke out. I would like to clarify one thing (column space in the WSJ is limited): I was not discharged under Don't Ask, Don't Tell. I served out my four-year contract and was honorably discharged when I chose not to re-enlist. Aside from changing a pronoun here and there when my buddies and I would discuss our sex lives, DADT did not affect me nearly as much as it has others. I would not be speaking out against it if I were not firmly convinced that it is detrimental to our national security. Note: Due to the aforementioned flame war, I closed the comments to this thread.