Frontlines: The Latest from OutServe-SLDN

Mr. Hersh:

Thank you for your comments and ideas.  I can see that you put a lot of time and thought into them, and they make a tremendous amount of sense and I humbly have considered them very carefully.  Where I think we agree to disagree is on Congressional deference.  Practically-speaking, the Supreme Court might seem to give Congress deference as you say, but legally and constitutionally-speaking they cannot, or would not.  One of the things which I cited in my Petition was the Army’s own history of segregation of Blacks before the Civil-Rights era.  That history, citing military memoranda and statements from the time, basically states that Congress and the Executive made the decision to maintain segregation because Whites—who formed the majority of the military—didn’t want to associate closely with Blacks, and that to go against that preference would have disrupted morale and discipline, i.e., unit cohesion.  However, if Congress were to pass a law today excluding Blacks from the Military based on unit cohesion, i.e., based on the preference of the White majority in the Military, the Supreme Court would laugh the Solicitor General out of court and strike down that ban in a New York minute.  The Supreme Court would do so, not because Whites’ attitudes have changed (and they have changed), but because such blatant pandering to the bigotry of third persons is obviously wrongful discrimination no matter how you cut it.  The same is true with the ban on Gays.  While I understand that it is a chicken versus the egg scenario, I simply cannot see how the Supreme Court could validate pandering to the bigotry of third persons, even if Gays have not had their civil-rights moment like Blacks did and even given deference.  Romer and Lawrence make clear that, to paraphrase Romer, democracy has to mean more than just mob mentality rules.  This is and would be true even in the Military—otherwise our country would be reduced to a military junta. 

I also think that the forced celibacy component of DADT is a clear unconstitutional condition.  I don’t think that even the conservative justices would buy that it’s OK to force Gays in the Military to be celibate.  I remember several years back when the Marine Corps was talking about requiring all recruits to be single, ie unmarried.  The idea was immediately squelched, as far as I heard, because Military and civilian lawyers quickly shot it down as being obviously unconstitutional.  They said that there is absolutely no way you could force a person, even in the Military, to be celibate and single on his off-time. 

I think that we muddy the water if we engage in any type of reasoning or argument which admits that there is SOME, however slight, connection or link between the ban and Military readiness—which engagement I think we do when we resort to “balancing” or “developing a factual record” on a facial level.

I think the greatest risk would be for us to put our faith and hope in President Obama or the Congress.  I don’t say that simply because I voted for McCain.  I say that because President Obama has objectively demonstrated, by his actions, that 1) he does not always keep his promises, and 2) that DADT is not a paramount issue for him.  His “study” idea, which has been virtually universally condemned by the Gay community, is evidence of the latter.  The only way we have any chance of his and Congress’ getting rid of DADT, in my opinion, is if we hold their feet to the fire now.  That is why I think it is so important that the existence of my pending Petition be publicized.  Obama will have to reveal his true intentions when his Solicitor General files the Government’s response to my Petition.  I ask you and others to help me publicize the situation and make this the defining moment.

Ms. Sanderson:  Did you speak with the WilmerHale/SLDN attorneys as well?  I didn’t think so.  You couldn’t speak with them because that would have proved my point that your accusations are baseless.  Call Stuary Delery, the lead Cook plaintiffs’ attorney, and ask him what I told him in Nov 2008 and Dec 2008 about my motivation for proceeding with the petition.  He will tell you that I said that it was the 13,000 individuals discharged under DADT as well as the greater Gay equality cause.  Which is true.  A win in my case will serve both those interests.  A win in Witt won’t.  The Cook plaintiffs abandoning their case won’t. 

As for my use of “personal pronouns,” I can hardly refer to myself in the third person, especially when I am the one being attacked by the likes of you.  For you to say that my use of personal pronouns means I am “ego-driven” and “narcissistic” makes zero sense.  Tom Carpenter used plenty of “personal pronouns,” but I don’t see you pronouncing him “ego-driven” and “narcissistic.”  Oh, by the way, I notice that your most recent post has two “personal pronouns” as well.  By your own logic, you must truly be a megalomaniac! (For the record, I don’t think you are a megalomaniac, I am just demonstrating the absurdity of your logic.)

As for “attacking” the other plaintiffs, the record is clear: the first to “attack” anybody were the other plaintiffs, including your friend.  I said nothing about the other plaintiffs until AFTER they had filed their respondents brief in the Supreme Court opposing certiorari for me.  I’m not going to apologize for defending myself against such an obvious betrayal.

Equally obviously false is your assertion that the other plaintiffs cannot defend themselves from my comments.  They can post a comment on this blog anytime they want, their attorneys’ advice notwithstanding.  Tommy Cook, one of the plaintiffs, in fact recently posted on this blog, although before the present controversy erupted.  In fact, if anyone cannot easily defend themselves, it is I, because SLDN is filtering my comments.  I don’t know if they are doing this to anyone else, but when I try to post a comment, a page comes up and says that my comment is being reviewed by a “moderator.”  My comments no longer directly post like before.  (This could prove quite disastrous for SLDN, though, because if anything defamatory is posted about me and SLDN prevents me from responding, they won’t be able to argue certain legal defenses in a defamation suit.)

Your suggestion for me to “try the case by filibuster” is perhaps the most preposterous.  “Filibuster” means, by endless debate, indefinitely delaying voting on a bill.  I can hardly try my petition before the Supreme Court by endlessly delaying the Supreme Court’s decision on the matter.  I AM seeking a DECISION on the matter as soon as possible.  While I appreciate the subtleties of analogy, there is no comparison here. 

As for “bloviate,” you may be watching too much O’Reilly Factor.

Mr. Pietrangelo,

I was crystal clear in my post that I “respect your decision to appeal,” that I though it was moot as the USSC will likely deny cert, and that I advised you not to appeal because if the justices decide to hear the case without a conflict between circuits, it would likely be to weaken Lawrence.  That your resolve to appeal is now heightened, fine, go at it and good luck.

But don’t stop there. 

Get involved in or create grass-roots actions to bring attention to this issue to help pressure Obama, the Congress and the JCS.  It is inappropriate for SLDN to create or participate in such actions, just as it is inappropriate for SLDN to be partisan.  But you can and should.

Your passion is wasted venting on blogs like this filled with your supporters, so much so that you are treating differences in strategy as opposition to the goal to end DADT.

Is Obama backpedaling from his campaign pledge to end DADT by calling for dilatory investigations?  Or is he being prudent in slowly garnering respect and support from the JCS so he doesn’t repeat Clinton’s fatal error? 

I’m not sure if even he knows, as with two wars and the worst economy since the early 30s, DADT is not his top priority.  But I do know that Obama (and more importantly Congress) will be influenced by political pressure, and grass-roots events to raise public awareness and drive to repeal DADT would accelerate the inevitable repeat of DADT. 

So take your shot at the Supreme Court.  Then continue fighting to repeal DADT in other ways.

I’m just glad some people have the resources to fight in court.  I had to fight the Navy myself just to get a copy of my records.

To Mr. Hersh:  Let me remind you of something.  Several comments before yours, Ms. Sanderson said that I was being driven by “ego” and that I didn’t “consider anyone other than” myself.  Mr. Carpenter made baseless statements about my understanding of Supreme Court review.  Thus, criticism of me from your quarter has hardly been fair or non-defamatory.  Yet, you criticize me, and only me, for “defaming” and “maligning.”  It seems like it is YOU who should stop defaming and maligning ME.  If you disagree with my decision to petition, then simply say that, but don’t bust my chops in the process.  Moreover, my criticism of WilmerHale and SLDN and the eleven other plaintiffs is completely fair because WilmerHale and SLDN had an ethical duty as my former counsel in the matter not to take an adverse position from me in the matter, which they have done with their respondents’ brief.  The eleven other plaintiffs AUTHORIZED that adverse position.

Your pronouncement that if you were the judge in our case you would probably have decided against us is ridiculous. (Why don’t you file an amicus brief supporting DADT, then, in this case?! since you are so pro-DADT).  All the Congressional fact-finding in the world would not change the basic fact that sexual orientation, like skin color, is irrelevant, including as to unit cohesion.  Either you believe that, or you don’t.  Just because bigots in the Military don’t like Gays is no more justification for excluding Gays than Whites’ dislike for Blacks before 1960 was justification for segregating Blacks in the Military.  Please stop apologizing for bigotry.

As for your statement about my “bleeding behind enemy lines,” it is you and Mr. Carpenter who need to stop playing the violin for yourselves and your friends and to stop being hysterical.  My statement about leaving a man behind was an analogy.  Do you understand what an analogy is?  It is a symbolic comparison.  It is not meant to be exactly literal.  My point, as I think was quite obvious, was that the filing of the respondents’ brief was a betrayal in a matter in which important personal values are at stake.  It cannot be denied that the eleven other plaintiffs abandoned the case, whatever their reason for doing so.  Having undertaken the case in the first place, they should have seen it through to the end.  Indeed, who did they think would be hearing the case if it ever got to the Supreme Court: Barney Frank?

As for your pronoucements about Witt, they too are wrong.  Witt won’t do anything for Gay equality or for Gay service in the Military.  Even if Major Witt wins at the district court and circuit court levels and the government does not appeal, the victory will be limited to one person: Major Witt.  If I win, it will be a win for everyone.

Finally, Mr. Hersh, I want you to know that comments like yours only serve to strengthen my resolve to see this petition through.  I don’t appreciate baseless accusations of hysterics and paranoia and defamation from the Gay community.  They remind me of the injustice I saw and experienced under DADT, and compel me to want to end DADT all the more.

To Mr. Carpenter: Like I said to Mr. Hersh, please get a grip.  An analogy is an analogy, nothing more.  Of course the pain and suffering of combat is not the same as the pain and suffering of being discharged and abused under DADT, but it certainly is not remotely dissimilar.  Only a person who has not been affected by DADT would say otherwise.  You only have to read your fellow critic, Ms. Sanderson’s, comment about her friend’s “life altering” experience to know this.  In fact, I think there are many people, including those who have seen combat, who would say that the injustice of a discharge under DADT is worse than the hell of combat, because of its particular and continuing effects, including on one’s reputation.  Before you laugh at that statement, recall the old saying, “There are some things worse than death.”  Also recall that old Marine Corps motto, “Death before dishonor.”  I won’t go on about this issue because I do not want to seem to imply anything about anyone else involved in this discussion or dispute, but I have personally experienced both sides of the coin—combat and discharge—enough to know that what I am saying is true. 

As for Obama’s promise, I’m not willing to wait.  Many others aren’t either.  Many are.  If you are willing to wait, then be quiet and wait. 

Finally, I did not bring anything upon myself.  If the eleven other plaintiffs had just slept in the bed that they had made for themselves, no dispute would have erupted.  Period.

I greatly appreciate your passions, and your efforts to end DADT so other gay service members can serve without the harrowing hardships and indignities you suffered.  I also respect your decision to appeal your case.

But your emotions have gone beyond impassioned discourse into the realm of hysterics.  I’m confident that once you calm down, you’ll greatly regret defaming your allies with unfounded personal attacks merely because you disagree with their strategy for ending DADT.

There is no conspiracy within SLDN to retain DADT, nor a conspiracy to somehow advance an attorney’s career.  SLDN is not a clandestine organization for the Democratic Party, or a front for some gay Mafia.  SLDN, and the other 11 plaintiffs, made a difficult tactical and strategic decision with which you disagree.  So spare us your violin sonata about SLDN and your fellow service members and co-plaintiffs leaving you injured behind enemy lines to bleed to death. 

Several years ago, after reviewing the initial briefs on the motion to dismiss, I privately told a few of the Cook plaintiffs that we’d lose the case, and that despite my extreme bias in favor of ending DADT, I would have a hard time ruling for us if I were the judge because of fairly compelling separation of powers issues.  It is one thing for the judiciary to determine a statute violates a constitutional provision; it’s another to tell Congress that its fact-finding determination that gays undermined unit cohesion was wrong, and merely a ruse designed to discriminate against gays.  Congress spent more time on the gay military issue than it did for any other matter in 1993 – to ignore its factual determinations from such hearings set a dangerous precedent.

That said, I believe the Cook case has greatly advanced our cause in a subtle way that few will recognize or appreciate.  The 1st Circuit only treated the appeal as a facial challenge to DADT, not as applied challenges for each of the 12 plaintiffs.  In the Witt case that Mr. Carpenter referred to, the 9th Circuit similarly refused to overturn DADT on its face, but it held that the trial court must hear the as-applied challenge.  The appeals court ordered the trial court to balance the significant liberty interest of Maj. Witt in maintaining an intimate relationship against the detriment to unit cohesion, discipline, order and morale. 

What is remarkable about the Cook case, however, is that the 1st Circuit also recognized the liberty interest in service members’ gay relationships, and did so with even stronger language than the 9th Circuit.  Because the 1st Circuit’s ruling was unfavorable to our side, the recognized liberty interest carries more weight as persuasive authority, bolstering the 1st Circuit’s holding.  (The circuits recognized this liberty interest in light of Lawrence v. Texas, the 2003 case in which the Supreme Court essentially held that gays had the constitutional right to engage in sexual relationships.)

This opens the door to a flood of as-applied challenges in which particular service members can argue that their liberty interest is substantial, whereas there is no ascertainable detriment to cohesion and discipline by their being gay and out in their unit.  While such cases would take years, and wouldn’t overturn DADT, the prospect of such cases pressures Congress to reevaluate DADT before the courts do.

And of greatest significance is that the 1st and 9th Circuit holdings call for Congress not to determine if gays serving openly may harm unit cohesion - as done in 1993 - but to ascertain the degree of detriment and balance that against the liberty interest of service members having intimate relationships.  It will be far easier for Congress to repeal DADT under this test than under the one employed in 1993.

It’s inconceivable to me that Supreme Court would grant cert on the Cook case, whether it’s just you, or all 12 plaintiffs appealing.  The reason the case was dismissed was because of deference to Congress’ factual determination that gays serving openly undermined unit cohesion.  Even when the Supreme Court was less conservative it granted great deference to Congress on military personnel matters, and it certainly is not going to jump in while Congress is gearing up to hold hearings to readdress that very issue. 

Furthermore, the high court rarely hears cases without a dispute between circuits, and the 1st and 9th Circuit holdings are substantially similar, despite different outcomes.  It won’t likely matter what anyone affiliated with the Cook case does.

However, if I’m wrong and the court grants cert, then I fear the conservative justices may do so to revisit Lawrence and narrow that holding, not reinstate your case. This could limit future matters for which discharged service members, and civilian gays, could seek judicial relief.

So my advice is to drop the appeal, and stop maligning your allies in the struggle to repeal DADT.

Jeff Hersh
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One of the plaintiffs is my dearest friend.  To say that this whole process has been life-alteringly difficult for all the plaintiffs is an understatement.  When it became obvious—to everyone except apparently Mr. Pietrangelo—that continuing to fight this particular battle would be a strategic blunder jeopardizing the ultimate objective, they did the smart thing. They set their egos aside and chose to preserve the greater good.  Mr. Pietrangelo’s case has implications that reach beyond DADT into some recent hard-won gains involving equal rights. His inability to consider anyone other than himself places everyone’s sacrifices at risk.  SLDN, WilmerHale, and the plaintiffs have kept the faith by choosing the greater good and preserving future legal options for our community.

The legal team at SLDN did exactly the right thing. What Mr. Pietrangelo needs to consider counting his votes.  Why would anyone wish to take this to the Supreme Court when there the realistic chances of victory, at this time, are low?  To lose this case, would push the effort to repeal Don’t Ask Don’t Tell back by years if not decades. Mr. Pietrangelo count your votes before jumping. If you cannot count to 5 on this one, you are playing a fools game.

Just so it is clear for the readers, WilmerHale and SLDN did not merely not seek certiorari in this case on behalf of the eleven other plaintiffs.  WilmerHale and SLDN did not seek certiorari for the eleven plaintiffs, and additionally WilmerHale/SLDN OPPOSED certiorari for me, even though I have petitioned for certiorari.  There’s a helluva difference.  Either way, WilmerHale and SLDN and the eleven plaintiffs betrayed the cause, but by throwing me under the bus they definitely did wrong.  Imagine if a platoon were in an ambush in Iraq or Afghanistan and the platoon commander and the platoon soldiers let one soldier be taken by the enemy so that the rest of the platoon could escape and fight another day.  Don’t you think the platoon commander and the platoon would not only be cowardly in that situation but guilty of improper behavior in the face of the enemy?  What ever happened to “never leave a man behind”?  The LGBT community has lost itself.

O_o?  Thought Aubrey was a girl’s name.

I just wish the friend I had in JAG last year would have been sucessful in getting my military record out of Virginia.  Would’ve been a nice one up from the armed forces.

Soldier:  Thanks for serving.  I’d like to address some points in your comment.  I am an attorney and served as an Army JAG officer during OIF.  My specialty was Law of War, which includes treatment of detainees.  While that does not make me infallible or omniscient or anything special, it does mean I have some sense of the issue.  It is correct to say that there has been no “controlling” legal determination.  Some federal judge (i.e., not a Supreme Court Justice) or two may have said it was torture, but that is not controlling, because in our system the Executive may appeal a lower court determination, and in that instance I believe did.  Unless you can cite a US Supreme Court decision on waterboarding etc., I will stand on my assertion.  The real point at issue, though, is that issues like waterboarding and other criticisms of Bush have nothing to do with DADT and detract from the issue of DADT.  I think President Clinton did a lot of things that broke the law, but I don’t raise them in my comments on DADT—even though Clinton signed DADT into law.  I don’t raise them because raising them makes DADT a POLITICAL issue, rather than a CIVIL-RIGHTS issue.  I agree with you about Obama not giving any attention to DADT—during his press conference yesterday with the Joint Chiefs of Staff, he didnt mention DADT at all—but the reason we need to hold his feet to the fire is to force the issue so that he shows his true colors—that he doesn’t care enough about LGBT equality to make it a priority.  The LGBT community need to know that now so that we can concentrate our efforts on what will work—a civil rights movement.  Bashing Bush isnt’ gonna get us equality; he’s no longer President.  Waiting for Obama to deliver isn’t gonna get us equality now.  What you and the LGBT Establishment ignore is that there is a petition pending before the US Supreme Court in a case challenging DADT.  All Obama has to do is to endorse it.  It will take 5 minutes.  He has 5 minutes. 

“controlling” is critical is because the US has three co-equal branches of government—one of which is the Executive and one the Judiciary.  That means basically that until the Supreme Court specifically delineates what practices constitute torture, the Executive branch is free to reasonably decide itself.  One or more Americans—perhaps including myself—may not like how it decides, but that is how it works.

I concur with you over holding feet to the fire.  I’m very unsure what the new administration brings considering Obama chose Warren to give his invocation. (A man who fought fervently to pass proposition 8 in California)  That right there was a slap in the face to the entire LGBT community.  As citizens, we’ve become too complacent in making our voices heard and letting elected officials twiddle their thumbs.  We have to beg and bribe to have equal rights acheived.

(But just one small foot note, Sarvis is a women)

I think there are three glaring things wrong with this article.  First, it is clearly political and Mr. Sarvis’ personal opinion.  The first half of the article has nothing to do with DADT and simply is Mr. Sarvis taking potshots at the Bush administration and Howard Kurtz’s latest column, while glorifying Barack Obama.  For example, Mr. Sarvis states, as if it were undisputed, that the Bush “enhanced interrogations” were “torture.”  There has been no controlling (ie from the US Supreme Court) legal determination that the tactics employed by the Bush administration constituted torture—at least not that I know of.  Moreover, there are plenty of people, including President Obama himself, who support or would support “enhanced interrogation” under the right circumstances.  Indeed, President Obama himself has left open the possibility to use enhanced interrogation if the Army Field Manual is not adequate (how is that different from Bush?). Second, Mr. Sarvis’ article misleadingly states that the President cannot issue an executive order to make DADT go away.  In fact, the President could—if so inclined—issue an executive order to at least neutralize DADT until it is repealed and in that sense make it go away.  The President could issue an executive order or similar executive regulation, under Section 654(b), withholding all discharges and initiations of investigations/discharges under Section 654 at the Presidential level.  That is, the President coud order that no investigation or discharge be initiated under Section 654 without his personal approval.  This would effectively prevent any investigation/discharge, as no senior officer would risk bothering the President on such an issue, or if they did, the President could simply sit on the referral as being a low priority.  Which brings me to my third complaint with Mr. Sarvis’ article.  It fudges on the fact that—now that Obama is President—it is OBAMA who is propping DADT up.  President Obama could have issued a simple executive order neutralizing DADT—as described above—on his first day.  But he chose not to.  He chose not to because he does not REALLY believe in LGBT equality.  He’s all talk and no action.  Which is why, rather than politically bashing Bush and trying to ingratiate himself with Obama, Mr. Sarvis and other LGBT “leaders” should be holding Obama’s feet to the fire and demanding immediate action on equality.  If it were Blacks who were still second-class citizens, do you think Obama would have waited even 24 hours to give OR TRY to give them equality?  Of course not!  One of the ways Mr. Sarvis could hold Obama’s feet to the fire would be to demand Obama support the petition for certiorari that is pending before the US Supreme Court in a case challenging DADT.  Civil-rights organizations like SLDN should never be political—it diminishes their message.  I may criticize Obama on DADT in this forum but in this forum I do not otherwise criticize him.