The perversity of President Obama’s priorities was proved again
twice last week. First, by our comprehensive failure to use our
cyberwar capabilities to disable and disrupt the Wikileaks
website’s release of a quarter of a million State Department
classified cables. Second, in Secretary of Defense Robert Gates’s
insistence that Congress repeal the “Don’t Ask, Don’t Tell” law
before the lame duck session ends because he fears the courts will
do so more inconveniently than Congress would.
Wikileaks — anarchist Julian Assange’s website — has
over the past four months published three huge groups of U.S.
secret documents. Since the latest batch of documents was
published, Wikileaks has been under intermittent cyber attacks, for
which Assange & Co. blame the United States.
But U.S. Cyber Command, according to a Pentagon spokesman,
has had no hand in the attacks because it’s legally barred from
doing so. The attacks on Wikileaks have reportedly been the work of
a “hacktivist” who calls himself “Jester” and is said to be a
former U.S. special operations trooper.
But think about that. We’ve had more than four months —
probably about nine months — since we learned that Wikileaks had
been given hundreds of thousands of classified documents and would
publish them. Even four months is an eternity in cyberwar, a period
in which new weapons can be developed and employed several times
over. Cyber Command — or one of the intelligence agencies that
have vastly more flexible mandates — could have used their
enormous resources to prevent publication by all sorts of cyberwar
attacks. Why didn’t they? Because the White House, the Pentagon,
and the State Department didn’t ask them to do it.
It was a choice made by the White House that is, itself, a
scandal. It’s not only our right to protect our secrets, it’s the
Obama administration’s duty which they chose to ignore.
Defense Secretary Gates told the Senate Armed Services
Committee that Congress had to act before the end of the lame duck
session to repeal the “Don’t Ask, Don’t Tell” law. Gates claimed
that if Congress didn’t act, the courts would overturn the law too
quickly and not allow the Defense Department enough time to
implement a policy to allow homosexuals to serve openly.
But Gates’s claim of urgency is a strawman that the Obama
administration created by failing to defend the law in
court.
The September decision in the Log Cabin Republicans case
— in which the judge overturned the DADT law declaring it
unconstitutional — was the direct result of the Obama Justice
Department’s failure to defend the case. In Judge Virginia
Phillips’
decision, she notes — not once, but three
times — that the Justice Department presented nothing in evidence
other than the text of the law and its legislative history. In
effect, it mounted no defense.
Where were the affidavits of then-Marine Commandant Gen.
James Conway and other military leaders affirming the military
necessity of the law? Where were the witnesses to offset the
evidence presented by the Log Cabin lawyers, an endless stream of
“expert” and lay witnesses, studies, and such?
They were not entered into evidence. And unless the Ninth
Circuit reverses and remands to Phillips for further proceedings,
the vacant record will be all the Ninth Circuit and the Supreme
Court will be able to consider. Gates, Obama, and Attorney General
Holder know this.
The urgency Gates claims is false. First, if the case were
defended properly the matter wouldn’t be resolved soon. The appeals
would take years. And it clearly isn’t a case the defense would
definitely lose.
Article 1, Section 8 of the Constitution gives Congress
the duty “to make rules for the government and regulation of the
land and naval forces.” The courts must — and will — defer to so
clear a constitutional mandate if it is defended properly and
skillfully. Which has not been done.
Judge Phillips’ decision says that the government didn’t
meet its obligations of proof that the DADT policy “significantly
furthers” the government’s interests and that it is necessary to
achieve those interests. It’s easy to fail to satisfy that standard
if you don’t try. And the Justice Department didn’t.
Phillips made several key findings in the absence of
contrary evidence. Consider how puny the defense effort must have
been in light of these findings.
She ruled that DADT impedes recruitment and contributes to
troop shortages. But Joint Chiefs Chairman Adm. Mike Mullen
testified last week that homosexuals represent only about two or
three percent of the military, the same number they represent in
the general population. How can that be a major impediment to
recruitment and retention?
Another finding was that by causing the discharge of
well-trained and competent service members the act harmed rather
than helped unit cohesion and morale. But only last Friday Marine
Corps Commandant Gen. James Amos testified
that a repeal of Don’t Ask, Don’t Tell “…has strong potential
for disruption and will no doubt divert leadership attention away
from an almost singular focus of preparing units for combat.” Amos,
speaking of the active-duty Marines, said “We asked for their
opinions, and they gave them to us. Their message to me is that the
potential exists for disruption to the successful execution of our
current combat mission should repeal be implemented at this
time.”
Gen. Amos’s opinion isn’t new. His predecessor, Gen. James
Conway, held the same views. Why didn’t the Justice Department
present that evidence to Judge Phillips? It can only be that it was
complicit in the effort to overturn the DADT law.
The professional military is nearly unanimous in opposing
a repeal of the DADT law. Why then is Bob Gates pushing it so hard
that he would participate in the White House’s effort to repeal
it?
Gates has made no secret of his plan to leave the Defense
Secretary post next year. He undoubtedly has further
ambitions.
Gates may be positioning himself to become the next
Secretary of State. If Hillary leaves, his path would be open if,
and only if, the president believes he is an effective tool to be
used to achieve Obama’s future political goals. To put himself in
line for that or some other key position, Gates has overreached on
DADT and alienated the military professionals as has Adm.
Mullen.
Mullen has gone even farther than Gates. In last Friday’s
hearing, he dismissed concerns that Marines would refuse to
re-enlist if DADT were repealed
saying, “We’ll deal with that.”
Mullen’s words reminded me of the famous New York
Daily News headline when President Gerald Ford told New York
City that he wouldn’t bail it out financially. The headline said,
“Ford to City: Drop Dead.” The headline that should have followed
Mullen’s sneering statement should have been, “Mullen to Marines:
Drop Dead.” I wonder if Secretary Gates, in some future
confirmation hearing or election, should he choose to run for the
Senate, would be eager to answer if he agreed with Mullen’s
statement.
Mullen, who seeks reappointment next year, should not be
confirmed. He and Gates need to know that the Marines’ motto —
“Semper Fidelis,” always faithful — means not only that Marines
are always faithful to their duty, but that we have a duty to be
faithful to them.
I stand with the Marines. Where do you stand, Dr.
Gates?
