UCSB political scientist Aaron Belkins‘ HuffPo piece “Obama To Fire His First Gay Arabic Linguist” has drawn quite a bit of blogospheric attention.
Dan Choi, a West Point graduate and officer in the Army National Guard who is fluent in Arabic and who returned recently from Iraq, received notice today that the military is about to fire him. Why? Because he came out of the closet as a gay man on national television.
[…]
I spent a day with Dan Choi last month, and he is not someone we want to fire from the military. He loves the armed forces. He served bravely under tough combat conditions in Iraq. His Arabic is excellent, and he used his language skills to diffuse many tough situations and to save lives, both Iraqi and American. All of his unit mates know he is gay, and they have been very supportive of him. But he doesn’t want to live a lie.
Belkins anticipates my rejoinder:
Some readers might think it unfair to blame Obama. After all, the president inherited the “don’t ask, don’t tell” law when he took office. As Commander-in-Chief, he has to follow the law. If the law says that the military must fire any service member who acknowledges being gay, that is not Obama’s fault.
He responds:
A new study, about to be published by a group of experts in military law, shows that President Obama does, in fact, have stroke-of-the-pen authority to suspend gay discharges. The “don’t ask, don’t tell” law requires the military to fire anyone found to be gay or lesbian. But there is nothing requiring the military to make such a finding. The president can simply order the military to stop investigating service members’ sexuality.
An executive order would not get rid of the “don’t ask, don’t tell” law, but would take the critical step of suspending its implementation, hence rendering it effectively dead. Once people see gays and lesbians serving openly, legally and without problems, it will be much easier to get rid of the law at a later time.
I know a little something about military law but am by no means an expert. But homosexual conduct by members of the Armed Services is manifestly proscribed by federal law, the Uniform Code of Military Justice. The procedures are clear. It’s true that the current implementation, the so-called “Don’t Ask, Don’t Tell” policy, was implemented under Bill Clinton. It is not, however, a mere executive order — and thus subject to the whim of his successors — but rather black letter statutory law (Pub.L. 103-160 [10 U.S.C. § 654].).
By announcing that he’s gay on national television, Choi gave his commanders little choice but to investigate. (Simply “being” gay isn’t a violation of UCMJ; it has to manifest by “conduct.”)
Regardless, it’s absurd to claim that Obama “fired” Choi. That’s a decision made echelons down the chain of command and, again, one that was a fait accompli once Choi made his announcement. Further, for Obama to order the military to stop following black letter law might take “guts” but it would create a minor Constitutional crisis. Failing to break the law isn’t “cowardly.”
It is, however, perfectly fair to blame Obama for not having taken action to overturn existing law, as Matt Corley, GayPatriotWest, and Andrew Sullivan do. But that’s what he needs to do: Burn political capital and use his extraordinary popularity and huge Democratic margins in Congress to change the law rather than flouting it. Is my memory faulty or were Democrats recently opposed to presidents ignoring laws they found inconvenient?
Obama, reasonably enough, wants to avoid Clinton’s mistake of dealing with this issue right out of the gate. It’s politically charged, will generate tremendous opposition from retired generals and other veterans, and will be a distraction from more pressing issues. Then again, as Matt Yglesias points out, “The fact of the matter is that on any given week, it’ll be more convenient to deal with this issue next week. But that just means you never get around to dealing with it.”
UPDATE: Upon re-reading the law, there may be a workaround more in keeping with Congress’ intent than simply ordering a suspension of investigations. Again, IANAL, but the only loophole I see in the law is (e)(2), which provides that “Nothing in subsection (b) shall be construed to require that a member of the armed forces be processed for separation from the armed forces when a determination is made in accordance with regulations prescribed by the Secretary of Defense that . . . separation of the member would not be in the best interest of the armed forces.“ The only problem with this, really, is that adopting a broad policy of “the law is silly, so we’ll deem all enforcement to be against the best interests of the armed forces” is that it would be in clear contravention of the “Findings” that serve as the law’s preamble.
UPDATE II: Glenn Reynolds quips, “You know, if someone asked me to go hire a a gay Arabic linguist, I wouldn’t know where to start. But the federal government seems to be firing them every time I turn around.” A clever entrepreneur could likely put 2 and 2 together and start a service.
UPDATE III (Dodd): It’s true that we cannot countenance “a broad policy of ‘the law is silly, so we’ll deem all enforcement to be against the best interests of the armed forces’”. But what we can — and I think should — do is implement a policy that, all other things being equal, it is not “in the best interest of the armed forces” to summarily discharge service members with crucial skills (like, just to take an example totally at random, Arabic language skills) merely because they are gay. A review process that weighs the individual’s value to the overall mission would be in keeping with (e)(2).
Video via AllahPundit.
