Why the Bush Administration's Legal Stance on "Don't Ask, Don't Tell" Undermines Its Legal Stance on the NSA's Warrantless Wiretapping

By MATTHEW R. SEGAL

Tuesday, Feb. 28, 2006

In defending the NSA's warrantless surveillance program, the Bush Administration has made two key claims about President Bush's prosecution of the war on terrorism.

The first claim is that Bush has the power to take decisive action on national-security matters, instead of waiting for direction from a clumsy and feckless Congress, and that he exercises this power when necessary. Stressing the President's Commander-in-Chief role, the Administration has argued that when it comes to the war on terrorism, Bush's prerogatives control.

The second claim is that the NSA program demonstrates Bush's unwillingness to let lesser concerns (such as civil liberties) trump his singular goal of protecting Americans from terrorism. The president's "most important job," Bush has said, "is to protect the security of the American people." The Administration presumes its critics have other priorities. According to Bush advisor Karl Rove, they suffer from a "pre-9/11 worldview." President Bush put it more bluntly when he said such critics "don't think . . . that we are at war."

Bush stressed that he needed to be able to tell Americans, "go about your business, we're taking care of your security for you." And when Vice President Cheney said recently that the NSA controversy has "clarified where all of us stand," he clearly meant that it separated those who truly care about security, and worry about al Qaeda, from those who do not.

There is, however, a simple, four-word rebuttal to these two claims: "Don't ask, don't tell."

The continued implementation of the "Don't ask, don't tell" law--under which openly-gay personnel must be discharged from the military--cannot be squared with either claim. In light of America's commitments in Afghanistan and Iraq, no one with a post-9/11 worldview, as the Administration has defined it, could support a costly ban on qualified service personnel. Moreover, given the Bush Administration's broad view of presidential power, that Congress enacted the "Don't ask, don't tell" policy into law does not explain why the Administration has chosen to implement it.

The bottom line: If Bush truly believed that he had both the legal power and the obligation to make security the country's first priority, he would have attempted to scrap "Don't ask, don't tell."

Don't Ask, Don't Tell: The Policy's History

To understand the clash between what the President says and what he does, it's crucial to understand the history of "Don't ask, don't tell."

The policy is the product of a compromise reached by President Clinton and Congress in 1993. Before taking office in 1992, Clinton made a campaign promise to end the longstanding ban on gays in the military. Since 1982 that ban had taken the form of a Defense Directive and thus, at least in theory, could have been lifted by a flick of the President's pen.

But Congressional leaders threatened to take this presidential power away by enacting the wholesale gay ban into law. Although he could have forced Congress to make good on its threat, and then vetoed such a law, Clinton instead struck the "Don't ask, don't tell" bargain. Gay personnel could serve, but not if they were openly gay.

In explaining his decision, Clinton stated that although "the Commander in Chief and the Secretary of Defense can change military personnel policies, Congress can reverse those changes by law."

To protect this bargain from Clinton and any future pro-gay presidents, Congress codified "Don't ask, don't tell" in the Fiscal Year 1994 Defense Authorization Act. The law includes a finding that Congress had authority to enact "Don't ask, don't tell," based on Article I of the Constitution. Section 8 of Article I gives Congress the power to raise and support armies, provide and maintain a Navy, and make rules for the government and regulation of the land and naval forces.

The President's First Claim: In Wartime, the President Can Trump Congress

The Bush Administration would doubtlessly reject Clinton's claim that Congress can reverse, by statute, the President's judgment on a wartime matter as important as staffing. Likewise, to the Bush Administration, Congress's assertion of Article I authority in the "Don't ask, don't tell" law must seem quaint--and wrong.

In the Administration's view, the important constitutional wartime powers are located exclusively in Article II, which assigns Commander-in-Chief powers to the President. Congress' powers are limited and can be overridden by the President if necessary.

The Administration has articulated this view in defending the NSA program. Critics point out that the NSA program violated the Foreign Intelligence Surveillance Act (FISA), which sets up courts to entertain warrant applications regarding intelligence. But the President has replied by saying, in effect, that as soon as Congress admitted the nation was at war, it gave up the power to enforce FISA or, presumably, virtually any other limit on the President's wartime discretion.

In particular, the President recently stated that Congress's 2001 Authorization for the Use of Military Force against al Qaeda (AUMF) "gave me the authority to use necessary force to protect the American people, but it didn't prescribe the tactics." Once Congress authorizes military force, on this view, the tactics are up to the President--prior Congressional legislation be damned.

Cheney and Attorney General Alberto Gonzales have gone even further, suggesting that Article II gives Bush inherent authority to take any action he deems necessary to fight terrorism, no matter what laws Congress enacts. This view reduces legislation to the status of advice: Cheney told PBS's Jim Lehrer that members of Congress can "suggest whatever they want to suggest," but the Administration would make the final call.

But if the AUMF and Article II authorized Bush to dispense with FISA, they also authorized him to dispense with "Don't ask, don't tell." After all, the "Don't ask, don't tell" law was passed a dozen years ago, in peacetime, and was based on what was by necessity a pre-9/11 worldview.

The Administration's Second Claim: Protecting Americans From Terrorism is the Top Priority

That brings us to the Administration's second claim: Not only does he have the legal power to protect Americans from terrorism, but that goal is his top priority--one in the face of which others must fall.

The NSA program, for instance, sacrifices Americans' civil liberties and personal privacy (and raises the risk of ethnic and religious discrimination as well). Are these values less cherished than the homophobic values that "Don't ask, don't tell" is supposedly protecting--and protecting at substantial cost?

That cost, at this point, cannot be denied. On February 14, the University of California released a report concluding that the policy's first ten years (fiscal years 1994-2003) cost the American taxpayer "at least $363.8 million." That figure includes costs related to the firing of nearly 10,000 qualified personnel, simply because they were openly gay--such as the costs of sending home fired personnel and the cost of recruiting and training their replacements.

If anything, the report's estimate understates the overall impact of "Don't ask, don't tell." Notably, the report did not capture the policy's non-monetary costs--such as the cost to our national security of discharging gay service personnel who have studied Arabic. This has happened at least 20 times since 1998.

To understand what $363 million buys, consider that it exceeds by $23 million the President's fiscal year 2006 request for bonuses and incentive pay designed to achieve the Army's and Marine Corps' "recruiting and retention missions."

The Bottom Line: Sacrificing Security To Preserve Homophobia

According to a recent report authored under a Pentagon contract, the Army has become a "thin green line" that has been stretched to the breaking point. Now is when the Army can least afford to discharge valuable personnel.

Although Defense Secretary Donald Rumsfeld has criticized this report, he has also presided over a relaxation of the military's weight, age, health, and education standards. Acceptable male enlistees now include overweight individuals, 40-year-olds, asthmatics, and high-school dropouts.

Yet a thin, young, educated man will be sent home for mentioning his boyfriend (or, if a female recruit, her girlfriend) to a recruiter--in the casual way that other recruits can mention their families without thinking twice.

The ban on openly-gay service personnel has a nominal national-security justification--the notion that gays hurt morale because straights don't want to serve with them. But a 1993 RAND Corporation study concluded that the benefits of allowing gays to serve in the military could be achieved without offsetting losses in morale. Indeed, it's difficult to see what kind of morale boost among military linguists could be worth firing the gay ones who know Arabic.

The Bush Administration's views on FISA unequivocally show that it believes Bush has the power to ignore Congress when it comes to wartime issues. That the Administration holds this belief does not mean its understanding of executive power is correct. But it does mean that if the Administration continues to abide by "Don't ask, don't tell," despite the policy's costs, there can be only one reason: It values homophobia more dearly than it does national security. Broadly asserting executive power means taking responsibility for decisions that fall within that breadth.

Soldiers, the Press, and the Public Should Force the "Don't Ask, Don't Tell" Issue

With midterm elections approaching, Vice President Cheney has said that voters should ask "how we propose to defend the nation that all of us, Republicans and Democrats, love and are privileged to serve."

Voters should take up Cheney's suggestion. They should ask, for example, why openly-gay Americans, no matter their love for this country, are not in fact privileged to serve in its thinly-stretched armed forces. Given that extremely security-conscious Israel has expressly allowed openly-gay soldiers to serve since 1983, and allowed openly-gay personnel to serve in sensitive intelligence positions since 1993, why is America so far behind--even after 9/11?

And here, answers surely can be given. The Administration claims it has security reasons for keeping the NSA program's details top secret. But the topic of gays in the military cannot be avoided on the theory that discussions would somehow educate the enemy.

Nor can the Administration avoid discussing "Don't ask, don't tell" while still clinging to its sweeping view of executive power. It cannot be true that every single decision in the war on terrorism falls to the President, except whether to repeal "Don't ask, don't tell." If that decision is the President's to make, then its costs are his to defend.


Matthew R. Segal is an attorney in Washington, DC. His email address is matthew.segal @yahoo.com

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