Fascinating. These two gentleman are dubbed, by some of our readers, the "torture twins," for their defense of the Bush administration's use of waterboarding. They worked in the Justice Department under Reagan and George H.W. Bush. And today they're arguing that, legally, Don't Ask Don't Tell can't stand.
When the Pentagon's top brass announced last week that they no longer believe military unit cohesion suffers from the presence of openly gay men or women in the ranks, they effectively transformed a policy question into a legal one, to which the answer is clear: Congress can no longer mandate discrimination in the armed forces on the basis of sexual orientation.
When Congress enacted the ban in 1993, it justified the restrictions based on the military's need for "unit cohesion." Openly gay soldiers, Congress concluded, "would create an unacceptable risk."The irony, of course, is that two Bush/Reagan officials are saying that the DADT policy is unconstitutional. Our President won't even say that. Instead, he defends DADT in court, even though he doesn't have to, against the very constitutional challenge that these two conservative lawyers say DADT should not survive.
In 1993, the military agreed with, indeed encouraged, this assessment. Today, according to the chairman of the Joint Chiefs of Staff, Adm. Mike Mullen, it does not. Statements of Defense Secretary Robert Gates indicate that the Pentagon's civilian leadership also no longer agrees. That these judgments have been reached after nearly a decade of superb combat performance by U.S. forces in both Iraq and Afghanistan, in situations where troops served together for months-long stretches under enemy fire and in incredibly confined conditions and were inevitably aware of each other's intimate habits, including sexual orientation, makes them all the more compelling.
This would not be the end of the court's inquiry when "don't ask, don't tell" is challenged, since it is the court's assessment of Congress's conclusions that must in the end govern. Yet the fact that the military's senior leadership (both in and out of uniform) sees no significant threat to unit cohesion and combat effectiveness from permitting openly gay men and women to serve will make it all but impossible for Congress to articulate a rational basis for excluding them.
