How sad that just two days after our nation celebrated another Independence Day, a major U.S. court decided to ignore the Constitution. I refer to the Ninth Circuit Court of Appeals decision on July 6 to allow open homosexuality in the military ranks, thus immediately ending the “Don’t Ask, Don’t Tell” (DADT) policy which has been in effect for 18 years.
Article I, Section 8, of the Constitution empowers Congress “To make Rules for the Government and Regulation of the land and naval Forces…” Article II, Section 2, empowers the president to be “Commander in Chief of the Army and Navy of the United States…”
Article III delineates the responsibilities of the judiciary, yet it is conspicuously silent about the courts’ role in military matters. For this, we should all be grateful. Micro-managing military policies by judicial fiat ignores the authority of our military leadership and circumvents the military’s own Uniform Code of Military Justice.
By allowing judges to institute military policy, we diminish the roles of the secretary of defense, the Joint Chiefs of Staff, Congress and the constitutionally-mandated role of the nation’s commander-in-chief. Simply put, the military’s role is to fight and win our nation’s wars. Judges lack the expertise and, in my opinion, the authority on how to best do this.
A three-judge panel of the Ninth Circuit vacated their earlier stay of the lower court’s ruling that DADT was unconstitutional. The Wall Street Journal pointed out that the latest decision “creates the possibility that recruiting rules could shift back and forth for weeks to come.”
This lack of consistency and expertise by the courts makes it very difficult to operate a first-rate military, much less fight two wars. It underscores the rationale (that many courts respected over the years) to give great leeway for the military to decide these issues, hopefully in an environment devoid of political and social considerations.
It is no secret that The American Legion would prefer that DADT remain in place. Our concern is not based on prejudice or discrimination but solely on unit cohesion and combat readiness.
When a lame duck Congress rushed through legislation last year that would likely repeal DADT, it included a requirement that Department of Defense (DoD) officials first certify that the new policy would not have an adverse effect on combat readiness. That certification has not yet happened.
Moreover, last year’s legislation passed after Congress was presented with a report that some have called into question. It contained what was supposed to be an honest survey of how those who matter most — the men and women in uniform — feel about the issue. It was later revealed that the numbers were manipulated in media reports that falsely indicated that 70 percent of the military members surveyed had no concern about the repeal.
Secretary of Defense Robert Gates was so bothered by the unauthorized and premature leaks of the report that he ordered an investigation by DoD’s inspector general. The U.S. Army and U.S. Marine Corps have been bearing the brunt of the combat, yet last year both of their service chiefs ignored political winds and bravely testified in favor of keeping DADT.
Then-Army Chief of Staff Gen. George W. Casey told lawmakers, “Implementation of the repeal of Don’t Ask, Don’t Tell would be a major cultural and policy change in the middle of a war. It would be implemented by a force and leaders that are already stretched by the cumulative effects of almost a decade of war.”
Marine Corps Commandant Gen. James Amos was even more forceful in an interview last year with newspaper reporters. He noted that a large percentage of Marine combat veterans that were surveyed are opposed to the change.
“So the Marines came back and they said, ‘Look, anything that’s going to break or potentially break that focus and cause any kind of distraction may have an effect on cohesion,’” Amos said. “I don’t want to permit that opportunity to happen. And I’ll tell you why. If you go up to Bethesda [Naval] Hospital . . . Marines are up there with no legs, none. We’ve got Marines at Walter Reed [Army Medical Center] with no limbs.”
The Obama administration should defend the president’s constitutional role as commander-in-chief by directing the Justice Department to immediately appeal the Ninth Circuit’s ruling. Moreover, the military brass and civilian leadership at DoD should withhold certification until the issues of military readiness and unit cohesion are studied more honestly and thoroughly.
Jimmie L. Foster of Anchorage, Alaska, is national commander of The American Legion, the nation’s largest wartime veterans organization with 2.4 million members.