hunter of justice

Chief of DoJ division argues the unconstitutionality of DoMA in Golinski case

Offering symbolic as well as substantive support, Assistant Attorney General Tony West, the head of the Civil Division at the Justice Department, appeared in court in San Francisco yesterday to present the Department's arguments as to why DoMA is unconstitutional, made to an apparently sympathetic judge. Here is Chris Geidner's report:

According to the Department of Justice, this is only the second time that West has appeared in court as assistant attorney general to argue a case. The other time, DOJ spokeswoman Nana Efua Embil told Metro Weekly, "was for a national security case." Prior to joining the Obama administration in 2009, West had been a partner at Morrison & Foerster in the firm's San Francisco office. Earlier in his time at DOJ, West was criticized for having signed his name to an administration brief filed in June 2009 that defended DOMA by arguing, among other points, that "DOMA does not discriminate against homosexuals in the provision of federal benefits."...

[Tara] Borelli [of Lambda Legal, counsel for Karen Golinski] referenced the historic nature of the hearing, pointing out, "This is the first time that the lawyers BLAG has hired [to defend DOMA] have appeared in court. This is the first time DOJ has appeared ... to argue" its position that heightened scrutiny should apply to sexual orientation classifications and that, under that standard, DOMA should be found unconstitutional.

Rape endemic in immigration detainee facilities; Holder still dithers on new standards

As I have noted before, Attorney General Holder is obligated under the Prison Rape Elimination Act (PREA) to promulgate national standards to curb rape in prisons and other detention facilities. He testified a year and a half ago about the cruelty of prison rape, stating that the standards were needed "yesterday." 

There are still no final standards.

And as common as rape of women and trans prisoners is in general population and maximum security prisons, there is good reason to believe that it may be even more widespread in detention facilities run by the Department of Homeland Security.  In light of that, it is outrageous that the draft standards issued by DoJ do not apply to DHS facilities. Unless AG Holder broadens the scope of the final standards, those prisons will remain uncovered. 

PREA was enacted in 2003 with a broad definition of prisons and jails and no exclusion of immigration facilities. (117 Stat. 988) Eight years later, however, DHS was created as a separate Cabinet-level agency. Attorney General Holder is electing to interpret this accident of timing as a reason not to cover DHS facilities. You can sign a petition sponsored by the ACLU urging him to reverse that position. 

From Just Detention International:

[Esmeralda Mayra Soto, a] transgender woman, fled to the US in 2002 after being raped many times in Mexico. More than a year later, she was taken into custody at her place of employment for not having a work permit and detained at a California immigration facility. During her first days there, while she was waiting to see a lawyer, an officer twice forced her to perform oral sex on him. She is now in this country legally, having obtained a form of asylum, but except in the most technical sense the US has hardly given her refuge...

Immigration detention, which is run primarily through DHS’s Immigration and Customs Enforcement division (ICE), is the fastest-growing system of incarceration in the United States. In 2006, approximately 250,000 people passed through it. This October the Obama administration, evidently determined to prove itself a strict enforcer of immigration law, announced it had deported nearly 400,000 people through the DHS system in fiscal year 2011...

Immigrants in civil detention actually have fewer legal rights than their criminal counterparts.

Judge to DoJ opposing equal discharge pay for gay soldiers: Good luck with that

The AP's coverage of the hearing yesterday in Collins v. U.S.:

Two days after repeal of the "don't ask, don't tell" policy against gays serving openly in the military, the Obama administration was in court Thursday opposing a lawsuit seeking full severance pay for those dismissed under the law. The American Civil Liberties Union is seeking class action status for 142 people who only got half pay after their discharge because of being gay. But the Justice Department asked the U.S. Court of Federal Claims to dismiss the case.

Judge Christine Odell Cook Miller said she probably will let the case continue and questioned why the government wouldn't pay now that the law has changed. "Your timing is exquisite - two days after the policy goes into effect eliminating `don't ask, don't tell,' here we are," she said as she took the bench. "I would consider this to be an unenviable argument to have at this time," she told the government's attorney later.

The case was filed by the ACLU on behalf of former Air Force Staff Sgt. Richard Collins of Clovis, N.M. He was honorably discharged in 2006 after nine years of service when two civilians who worked with him at Cannon Air Force Base reported they saw him kiss his boyfriend in a car about 10 miles from the base. The decorated sergeant was off-duty and not in uniform at the time, according to the lawsuit...

The Air Force paid Collins $12,351 instead of the $25,702 he expected after his discharge.

Separation pay is granted to military personnel who served at least six years but were involuntarily discharged, part of an effort to ease their transition into civilian life. But the Defense Department has a list of conditions that trigger an automatic reduction in that pay, including homosexuality, unsuccessful drug or alcohol treatment or discharge in the interests of national security. That policy went into effect in 1991, two years before "don't ask, don't tell" became law.

The suit argues it is unconstitutional for the Defense Department to unilaterally cut the amount for people discharged for homosexuality.

The administration is not defending the merits of the policy. Instead, Justice Department lawyer L. Misha Preheim argued the defense secretary has sole discretion to decide who gets what separation pay and the court cannot rewrite military regulations.

Miller said she would issue a ruling on the government's motion to dismiss by Oct. 15 after full review of the Justice Department's arguments, but her preliminary decision was to deny the motion. She warned Preheim and a uniformed Air Force attorney also at the defense table that they should be prepared for the case to move forward. She said it's probably appropriate to certify it for class action status, if the government really thinks it's worth it to continue fighting the case. "I can't believe this is something the military wants to revisit now," she said.

Joshua Block, attorney with the ACLU lesbian gay bisexual and transgender project, said the class action would cover 142 people who got half pay for being discharged for homosexuality in the past six years - the time period covered by the statute of limitations - for a total payment of $2.1 million...

Playing DADT bingo

When the Ninth Circuit motions panel reinstated the injunction against enforcement of DADT in Log Cabin Republicans v. Panetta, it looked like the judiciary might end the policy before the DADT Repeal Act would.  Now that the Justice Department has persuaded the same court to stay the injunction again (with the caveat that no investigations or discharge proceedings may occur), my hunch is that the legislative/executive branch, with its process of training and preparation for repeal, will get to yell bingo. The Pentagon is saying that certification that the military is ready for repal will occur by late July or early August; final repeal takes effect 60 days later. One way or another, DADT will soon be history.  

The current state of play in the litigation is that the briefing on the motion for reconsideration of lifting the stay will continue until Friday. I would bet that the next ruling is issued very soon after all the briefs are filed, perhaps even late Friday. 

The motion for reconsideration filed by Justice also responded to an order from the Ninth Circuit panel who will hear oral argument on the merits September 1 (a different group than the motions panel). That court had ordered DoJ to state explicitly whether it was defending the constitutionality of DADT. DoJ responded that Congress had amended the statute, and that the only relevant question for prospective relief was whether DADT, as amended by the Repeal Act, was constitutional.  And, DoJ argued, it clearly is, both because courts should always defer to the military and because the Defense Department is in the process of following its painstakingly prudent repeal process. 

The brief also noted that the Department's argument in the Golinski case that sexual orientation classifications should be subject to heightened scrutiny does not apply in the military context. As it had stated in its brief in Golinski (FN 4), DoJ reserved the issue of standard of review when the challenge was to a mililary policy: "classifications in the military context present different questions than classifications in the civilian context."  

So, the roller coaster continues. But since the end of DADT is not in doubt, why worry about how we get there? 

One concern is that if the case becomes moot, the Court of Appeals will vacate or "erase" the district court decision. Plaintiffs and amici will stress to the court the importance of not doing that because the lower court decision, based on a full trial, contains important findings of fact and conclusions of law that could be useful in non-DADT cases. 

The second concern is that the plaintiffs in the LCR case sought relief beyond simply the end of the policy, and if the case ends when DADT ends, the court will not reach those aspects of the claim.   Still pending are issues of full relief for persons discharged in the past, payment of their benefits and bonuses, etc etc that flow directly from DADT. See the Lambda Legal amicus brief.

 Lastly, the role of the courts will be crucial for the future questions related to equal treatment for lgb servicemembers such as those described in this New York Times report. Questions about, for example, spousal benefits and housing for married gay couples will create the next round of litigation. Those issues were not raised in the LCR complaint, but they are just around the corner. And they will send the courts back to consideration of what the standard of review should be for sexual orientation classifications, specificallly in the context of military policy.

Ninth Circuit tells DoJ to fish or cut bait on DADT + Added commentary

In an order today, the Ninth Circuit panel assigned to hear Log Cabin Republicans v. Panetta directed the Department of Justice to declare whether it is going to defend the constitutionality of DADT and, if not, suggested that the court will either invite an amicus - probably Congress - to serve that function or will declare the case to be moot. 

After reviewing the briefs filed by the parties, it appears to the merits panel that the United States is not prepared to defend the constitutionality of 10 U.S.C. § 654, which provides for the policy concerning homosexuality in the armed forces (i.e., Don’t Ask, Don’t Tell). The Government argues only that the Don’t Ask, Don’t Tell Repeal Act of 2010 (“Repeal Act”), Pub. L. No. 111-321, 124 Stat. 3515 (2010), is constitutional. But the district court found § 654, not the Repeal Act, unconstitutional. And § 654 remains the law of the land today, even though it is scheduled to be repealed once certain conditions are satisfied, which, as of the date of this order, has apparently not yet occurred.

Therefore, the central issue this court must address on appeal is whether the district court properly held that § 654 is unconstitutional. No party to this appeal has indicated an intention to defend the constitutionality of § 654 or to argue that the constitutionality holding of the district court should be reversed. The Government, of course, may refrain from defending the constitutionality of “any provision of any Federal statute.” 28 U.S.C § 530D(a)(1)(B)(ii) (providing that the Attorney General shall submit a report to Congress outlining his decision to refrain from defending a Federal statute); see e.g., Letter from Attorney General to Speaker of House of Representatives (Feb. 23, 2011), filed as Attachment A to the Motion of Appellee / Cross-Appellant Log Cabin Republicans to Vacate Stay of Injunction, Dkt. No. 107, (May 10, 2011).

If the Government chooses not to defend the constitutionality of § 654, however, the court may allow amicus curiae to participate in oral argument in support of constitutionality pursuant to Federal Rule of Appellate Procedure 29(g). In light of the foregoing, (1) the Government is hereby ordered to advise the court whether it intends to submit a report to Congress under § 530D(a)(1)(B)(ii) outlining its decision to refrain from defending § 654; (2) the Government is further ordered, if such report is to be submitted, to advise whether it will do so within such time as to enable Congress to take action to intervene in timely fashion in this proceeding, as provided in § 530D(b)(2); (3) the parties are ordered to show cause why this case should not be dismissed as moot, either immediately or upon such time as the President certifies that all conditions for the repeal of § 654 set forth in the Don’t Ask, Don’t Tell Repeal Act have been satisfied. The responses to this order shall take the form of letters to the court no longer than ten pages or 2800 words, and shall be submitted within ten days of the date of this order... 

 UPDATED - Commentary on this order by Jon Davidson, Legal Director of Lambda Legal, after the jump.

Change of heart: No DoMA challenge after all to gay couple filing joint petition for bankruptcy - UPDATED

The United States Trustee, a component of the Justice Department, has withdrawn its appeal of a Bankruptcy Court ruling that a lawfully married gay couple could file a joint petition, as spouses, seeking bankruptcy. The Justice Department has stopped defending DoMA, and the appeal was filed only to give the legal team hired by House Republicans the opportunity to defend it. So what this really means is that Paul Clement's team has taken a pass on this case, and presumably any bankruptcy case raising the same issue.

It isn't a surprise - the House Republican legal team bypassed the opportunity to become involved in this case earlier.  And it also makes sense for them to prioritize the much more important direct challenges to the constitutionality of DoMA's Section 3, like the Gill case, which is being actively contested in the First Circuit.

But it is also true that every time a court invalidates DoMA and that ruling goes unchallenged, a sense that there is a new status quo becomes more deeply entrenched, and the realization spreads that federal recognition of same-sex marriage does nothing to harm the administration of programs or the other functions of government. 

Meanwhile, Senator Patrick Leahy, chair of the Committee on the Judiciary, announced that the committee would hold hearings on a bill to repeal DoMA.

More details from MetroWeekly:

...DOJ spokeswoman Tracy Schmaler wrote to Metro Weekly that the July 6 filing in the Balas and Morales case represents a new policy, writing, "The Department of Justice has informed bankruptcy courts that it will no longer seek dismissal of bankruptcy petitions filed jointly by same-sex debtors who are married under state law."

Because of the federal definition of marriage contained within Section 3 of the Defense of Marriage Act, such joint filings have routinely been dismissed by courts at the urging of the U.S. Trustee, whose job as a "watchdog" over the bankruptcy process includes "[t]aking legal action to enforce the requirements of the Bankruptcy Code," according to the website for U.S. Trustee Program, which is a program under the Department of Justice.

In Balas and Morales's case, however, the bankruptcy court found on June 13 that Section 3 of DOMA was unconstitutional in its application to such couples attempting to file joint bankruptcy petitions. The U.S. Trustee, in consultation with the BLAG, had filed a notice that it was appealing the decision. The July 6 filing asks the court to withdraw that appeal.

In the filing, made in U.S. Bankruptcy Court in the Central District of California on July 6, Assistant U.S. Trustee Jill Sturtevant writes, "The [DOJ] has advised the [BLAG] of the pendency of this appeal, and the BLAG has responded that it does not intend to appear to present arguments in support of Section 3 of DOMA."

Sturtevant goes on to write, "The BLAG is actively participating in litigation in several other courts in which the constitutionality of Section 3 has been challenged. In light of the decision by the BLAG not to participate in this appeal and the availability of other judicial fora for the resolution of the constitutional question, the United States Trustee has determined that it is not a necessary or appropriate expenditure of the resources of this Court and the parties to continue to litigate this appeal."

About the department-wide policy, Schmaler wrote to Metro Weekly that the decision was made after consulting with the BLAG went on to note, "This decision is consistent with and follows the Administration's notification to Congress in February of this year that it would no longer defend the constitutionality of Section 3 of  DOMA as applied to legally married same-sex couples but would seek to provide Congress an opportunity to enter litigation to argue in favor of DOMA's constitutionality. This decision to stop filing motions to dismiss bankruptcy petitions avoids generating costly and time-consuming constitutional litigation that neither the BLAG nor the Department plans to defend."

UPDATE - Based on the Department's agreement to treat this ruling as applying to all bankruptcies nation-wide, the plaintiffs have notified the court that they will not contest the motion for withdrawal.  See the filing here.

A new (limited) line in the sand for Equal Protection analysis

The United States Department of Justice is now on record before the federal courts as supporting heightened scrutiny for sexual orientation classifications, at least in civilian contexts, and as seeking the invalidation of laws that bar legal recognition of same-sex marriages.  In In re Golinski, the Department filed In its first merits brief since Attorney General Holder issued a letter announcing that DoJ would no longer defend the constitutionality of DoMA. Although the brief does not go as far as I have stated in the first sentence, it is unlikely that a distinction could be drawn that would not extend its position to all civil law and to recognition of a marriage that was validly performed under state law.

The brief tracks the analysis of the Holder letter, but, because of the litigation context, it ratchets up the analysis from an explanation of why DoMA is too flawed to be defended to an argument that DoMA is unconstitutional and should be stricken. It's a subtle difference, but it gives the brief considerably more rhetorical firepower than the letter. Reading it drove home the point to me that this endorsement of heightened scrutiny is what the federal government will bring to every sexual orientation analysis for at least the next two, and hopefully six, years.

As the Veep would say, this is a big f**king deal. And although a Republican administration could and likely would reverse this position, that step would be seen as an extreme position. Boring as it might sound, the gay equality argument really has now become the new normal.

There is a but in this welcome development, though, and it's a big one. The DoJ argument is contingent on the court adopting a higher standard of review (DoJ takes no position on strict v. intermediate scrutiny - see fn. 13) than the rational basis standard. And rational basis is the standard that most courts have used to assess sexual orientation classifications (with differing results). DoJ essentially concedes that DoMA is constitutional under rational basis review. Footnote 14, page 18 reads (emphasis added):

Though the government believes that heightened scrutiny is the appropriate standard of review for Section 3 of DOMA, if this Court holds that rational basis is the appropriate standard, as the government has previously stated, a reasonable argument for the constitutionality of DOMA Section 3 can be made under that permissive standard.

 This dance-on-the-edge-of-concession language allows the Administration not to have to explicitly retract the arguments it made prior to the Holder letter, when it asserted that rational basis was the correct standard and that DoMA was constitutional.

 Golinski now has joined Gill v. OPM as a case to watch: the District Court has before it a brief filed by lawyers hired by House Republicans arguing that DoMA should be judged under the rational basis standard and upheld; the brief filed by the United States arguing that "Section 3 of DOMA fails heightened scrutiny;" and plaintiff's brief, arguing that DoMA is unconstitutional under either standard. 

The wedge turns: Republicans now gun shy on gay marriage

The NY Times this morning makes it official that the political tide for cheap anti-gay political attacks is ebbing, with an article (read it after the jump) on the astonishing degree of silence from the Republican establishment in reaction to the Attorney General's announcement that the Justice Department will no longer defend the constitutionality of DoMA.

The Times article concentrates on reactions, or the lack thereof, from likely Republican presidential nominees, but the let's-just-think-about-cutting-spending response from Republicans in Congress is much more important because Congress actually has some authority to respond to the Justice Department decision. Each chamber of Congress can determine independently whether it will seek to intervene in the pending lawsuits to defend DoMA as constitutional.

Consider the statement issued by Speaker Boehner:

While Americans want Washington to focus on creating jobs and cutting spending, the President will have to explain why he thinks now is the appropriate time to stir up a controversial issue that sharply divides the nation.

The statement gave no indication of whether the Speaker will ask the General Counsel of the House to actively defend the law. Since the Dems control the Senate, as a practical matter it would be only the House that can exercise an option to ask the courts to allow it as a body to intervene as a defendant. [Both chambers have their own independent counsel offices. The General Counsel of the House has authority under 2 U.S. Code 130f to "provide legal assistance and representation to the House..." I will write more about these possibilities in the DoMA litigation in coming days.] 

Individual members can seek to intervene, as Rep. Lamar Smith already has in the Gill case, arguing that the Justice Department was not defending DoMA strongly enough. But if only individual members of Congress seek to intervene, that will simply add to the marginalization of arguments in support of DoMA. The courts will be hard pressed to sustain a statute repudiated by the Executive Branch and effectively abandoned by Congress.

On the technical jurisdictional issues, it is unclear whether parties other than DoJ would have standing to appeal a ruling that the law is unconstitutional (shades of Perry). However, here, unlike in Perry, DoJ seems to be saying that it will seek review of decisions that the law is invalid in order to eliminate the possibility of a standing question such as has arisen in the Prop 8 case.

All of this indicates to me that the wedge has turned, and in a stunningly short period of time. Seven years ago, Republicans rolled through the states with constitutional amendments banning same-sex marriage (and it will be a while before those get dislodged). Gay marriage as an issue was no-lose for them and no-win for the Dems. Now it has become an "oh no, let's avoid" issue as much for Republicans as for Dems.

We saw the beginnings of this crack emerge with the brouhaha over the C-PAC conference just a few weeks ago. I wrote then that "we may look back on this in a few years and see it as watershed marking the beginning of the end of the coalition of economic and social conservatives in the Republican Party." Whatever else happens, this is going to be fun to watch.

What will DoJ tell the Second Circuit about DoMA?

The NY Times has made public a major angst producing question that looms before the Justice Department: whether and how to defend the constitutionality of DoMA in a circuit where there is no precedent as to the level of scrutiny required for sexual orientation classifications. In both the First and Ninth Circuits, DoJ can point to precedent developed in military cases that only rational basis review applies to Equal Protection Clause challenges to discrimination based on sex/o. Seeming simply to defer to precedent has been how the Obama administration has sought so far not to take a definitive stand on whether barriers to same-sex marriage violate the Constitution. That option doesn't play in the Second Circuit, however -

Mr. Obama, whose political base includes many supporters of gay rights, has urged lawmakers to repeal [DoMA]. But at the same time, citing an executive-branch duty to defend acts of Congress, he has sent Justice Department lawyers into court to oppose suits seeking to strike the law down as unconstitutional.

[Two new lawsuits], however, have provoked an internal administration debate about how to sustain its have-it-both-ways stance, officials said. Unlike previous challenges, the new lawsuits were filed in districts covered by the appeals court in New York — one of the only circuits with no modern precedent saying how to evaluate claims that a law discriminates against gay people.

That means that the administration, for the first time, may be required to take a clear stand on politically explosive questions like whether gay men and lesbians have been unfairly stigmatized, are politically powerful, and can choose to change their sexual orientation....James Esseks, an American Civil Liberties Union lawyer helping with one case, said the new suits could be game-changing.

The Obama legal team has not yet decided what path to take on the lawsuits, according to officials who spoke on the condition of anonymity about the internal deliberations. But the Justice Department must respond by March 11. The debate has arisen at a time when Mr. Obama has signaled that his administration may be re-evaluating its stance [and that his views on marriage rights “are evolving.”]

“I have a whole bunch of really smart lawyers who are looking at a whole range of options,” Mr. Obama said, referring to finding a way to end the Defense of Marriage Act. “I’m always looking for a way to get it done, if possible, through our elected representatives. That may not be possible.”

... [U]nder the Defense of Marriage Act, the federal government cannot recognize [same-sex marriages]. That has raised a crucial question: Is it constitutional for the federal government to grant certain benefits — like health insurance for spouses of federal workers, or an exemption to estate taxes for surviving spouses — to some people who are legally married under their state’s laws, but not to others, based on their sexual orientation?...

Justice officials have argued that the marriage act is justified, under [a rational basis] standard, by a government interest in preserving the status quo at the federal level, allowing states to experiment. And in its brief appealing the Massachusetts ruling, the department stressed seven times that a “binding” or “settled” precedent in that circuit required the easy test.

But for the new lawsuits, no such precedent exists. The Obama team has to say which test it thinks should be used. Courts give a class the protection of [heightened scrutiny] if it has been unfairly stigmatized and if its members cannot choose to leave the class, among other factors. By those standards, it could be awkward, especially for a Democratic administration, to proclaim that gay people do not qualify for it...

Do Appeal / Don't Lie: The question of whether Justice should appeal decisions to strike down DADT and DoMA

Walter Dellinger has an op-ed in the NY Times today spelling out a principled way for the Justice Department to respond to the decision in the Log Cabin Republicans case:

• The Justice Department should appeal Judge Phillips' ruling (and Judge Tauro's opinion reaching the same conclusion as to DoMA); but
• The Department should not attempt to justify DADT as beneficial to national security (and thus as advancing an important government interest). 

There are many reasons why. As Walter points out, a non-appeal would not eliminate the law, and eliminating the law is after all the goal, not this or that tactical move toward the goal. The decision of one District Court judge is not binding on anyone, not even other federal judges; a different federal judge could reach the opposite conclusion tomorrow and the second opinion would have just as much weight as the Log Cabin Republicans decision. Unless the law is repealed or struck down by the Supreme Court, either a different President or a new Congress could also direct that it be reinstated.

Moreover, the decision by a President not to appeal a trial court ruling would set a horrible precedent for the Executive Branch, and perhaps produce major backlash in support of DADT just as the possibility of Congressional repeal looms. Presidential non-appeals happen only in the most extraordinary circumstances, which is the way it should be. Even the cases often cited by those who are arguing that this or that case should not be appealed can be misleading.  In Metro Broadcasting v. FCC, 497 US 547 (1990), for example, it is true that then Solicitor General John Roberts filed a brief arguing that the law being challenged was unconstitutional, but that was an amicus brief - the FCC acting independently defended the law. In general, in cases in which the administration declined to defend a law, that decision was made after the federal courts had jurisdiction of the question [eg, INS v Chadha, 462 US 919 (1983)]. 

The smart thing for lgbt advocates to do on this issue is to move on to a better strategy, by focusing on what the government can and should do.  These are the three strategies to concentrate on:

1. Justice Department briefs should go beyond stating that the administration believes that the law is wrong and explain why it's wrong, rather that re-arguing anti-gay precedents. As long as the case is before an appellate court, it's fair game for the government to present arguments against a law; there will be plenty of voices before the court in absolute defense of the statute, and the Court of Appeals will reach its own conclusions.
2. The Administration should actually lead on repeal of DADT and DoMA, by pressing Congress to treat them as priorities, rather than trying to jump in front of the parade after members of Congress have taken the lead.
3. If there is no Congressional repeal in the lame duck session, the President should consider how to exercise his commander in chief powers so that national security is best served, as determined not only by him but by the Joint Chiefs of Staff. That could involve a stop-loss order or other partial mechanisms. Such an action would not eliminate DADT, but it would be a more legitimate process for mitigating its effects than trying to remove the question from the judiciary by a non-appeal of a trial court decision.

New Administration policy: Don't Ask, Don't Tell, Don't Lead

What a day this has been..

The Justice Department sought a stay of Judge Phillips' injunction against enforcement of Don't Ask Don't Tell, after a somewhat puzzling two days of delay, during which the status of the policy seemed strangely in limbo. The Defense Department first said that local commanders are in charge, but then sent an email communique telling them not to proceed with any discharges.  This was a good move, since a general in Afghanistan told the press that no one there had heard about the injunction, implying that they weren't too worried about disobeying it. This is not what lawyers want their client to say. Meanwhile, White House Press Secretary Robert Gibbs revealed that the President was "very involved" in the discussions about what the next litigation moves should be.

Run that by me again...

Does this muddle mean that the Administration was actually seriously considering the possibility of not seeking a stay of the injunction? That's hard to believe, but the Associated Press says it's true. Is that why they made such a hash of the situation, alienating pretty much everyone on any side of the issue? If POTUS was personally engaged with this, why was it so bungled? Or was the Oval Office engagement the reason why this deer-in-the-headlights moment happened?

And just to polish off the messaging debacle, the Senate leadership said today that they aren't so sure that there will be a vote on DADT repeal in the lame duck session after all. The promise of this vote has been the Administration's primary offering of a strategy that would enable the President to make good on his promise that DADT will end "on my watch."

Do we laugh or cry?

Federal court cases on DADT and DoMA move onward and upward

In a three-page order that the NY Times called "a significant new milestone for gay rights in the United States," Judge Virginia Phillips has enjoined the Department of Defense from "enforcing or applying the 'Don't Ask Don't Tell' Act and implementing regulations, against any person under their jurisdiction or command." The ruling, entered in Log Cabin Republicans v. U.S., also orders the Department to suspend any investigation or discharge proceeding already begun under DADT.

The Justice Department will almost certainly seek and obtain a stay of this injunction pending appeal.

Back on the other coast, Justice filed its notice of appeal in Gill v. Office of Personnel Management, the constitutional challenge brought by GLAD to DoMA in federal court in Boston.  The Gill case is now before the First Circuit Court of Appeals.

Some voices in the community have castigated the Obama administration for defending the constitutionality of these statutes; I take a somewhat different view.  

Anyone interested in hearing these arguments about defending statutes play out can join a national conference call being sponsored by the American Constitution Society and the National LGBT Bar Association on "Don't Ask Don't Tell and the Duty to Defend." Along with me, the other participants will be Walter Dellinger, former acting SG, and Professor Neil Kinkopf, formerly with Office of Legal Counsel. It will take place next Monday the 18th from 12 noon to 1 pm EDT.  It's free; you can register here.

The backstory to the Log Cabin Republicans' challenge to DADT

From AmLaw, an interview with Dan Woods, the White & Case commercial litigator who had worked on just one prior pro bono matter:

AMLAW DAILY: Hi, Dan. Congratulations on the big win. First question: How'd you get involved in the case?

WOODS: There was an associate here at White & Case, Martin Meekins, who was actively involved with the Log Cabin Republicans. So back in 2003, we filed an amicus brief in Lawrence v. Texas. After the U.S. Supreme Court ruled in that case and found the Texas anti-sodomy laws unconstitutional, Marty brought up the idea that it might be time to bring a challenge to "Don't Ask, Don't Tell" on constitutional grounds. We did some research and found it was a viable possibility on First Amendment, due process and equal protection grounds. We filed in 2004, and we've been at it ever since. We were in something of uncharted waters. The precedents were all against us.

AMLAW DAILY: Thursday's opinion made clear that the case centered around whether "Don't Ask, Don't Tell" accomplishes anything -- whether it helps unit cohesion in the military or prevents some sort of disunity that would theoretically bubble up if gays could serve openly. The testimony from your military witnesses kept going back to the notion that "Don't Ask, Don't Tell" actually hurts unit cohesion. They all mentioned the fact that they couldn't talk about their private lives, and how that made colleagues distrust them. Did you expect that going in?

WOODS: It really did evolve that way. It was just what these witnesses were saying. They were all from different branches of the military. Some were officers, some not. But they all kept saying the same thing. We had one witness, Tony Loverde, who had flown 61 combat missions in Iraq, and he was saying that when he'd get back from one of those flights he'd have to run away from the people he had just been flying with because he knew they were going to want to talk about what they were going to do over the weekend.

AMLAW DAILY: He was the one fellow soldiers nicknamed "Vapor" because he disappeared all the time, right?

WOODS: Yes, that's him. There was also a lot of testimony that didn't make it into the opinion about how this policy impacted women in particular. There was sexual harassment of women by women happening, and women would be afraid to report it because they feared being outed as gay -- even if they were in fact heterosexual. It was called lesbian-baiting. There were even some women who responded to a survey who said they had sex with men they didn't want to have sex with so they would not be perceived as being lesbians.

AMLAW DAILY: Wow. There's a lot of uncomfortable stuff in this testimony. One witness talks about being called a "faggot," being forced to simulate sexual positions, and even being fed dog food, walked around on a leash and locked in a dog's cage. Were you surprised by some of these revelations?

WOODS: Yes. The emotion in the courtroom when the servicemen testified was unlike anything I've ever seen.

AMLAW DAILY: You had a solid core of both servicemen witnesses and expert witnesses. The government didn't really have any witnesses -- they relied on challenges to standing and the idea that the language of the law was constitutional, regardless of what impact the law had in practice. Were you surprised they didn't put on more of a traditional case?

WOODS: That's very true. They did not put on a case at all. It was a strategic choice. They could have had witnesses testify about why "Don't Ask, Don't Tell" is somehow necessary. I was disappointed they didn't. I was looking forward to cross-examining any witness who might say that.

AMLAW DAILY: It seemed similar in that way to the recent Prop. 8 case in California. The judge there chastised the pro-Prop. 8 side for failing to put on much of a case.

WOODS: There are some parallels there. I think both we and the David Boies/Ted Olson side in the Prop 8 case just tried the case as if it were any other civil case -- like a big contract case or a securities case. We put on as much evidence as we could from lay people and expert witnesses. Just as they had witnesses testifying about what being married would mean to them, we had witnesses talk about their personal experiences in the military.

AMLAW DAILY: And the government wanted that testimony thrown out, right?

WOODS: Oh, my God. I've seen people try to exclude evidence, but I've never seen anything like this. The government filed three motions in limine: one to exclude our documents, one to exclude testimony from lay witnesses and one to exclude testimony from expert witnesses. We would have had nothing left!

AMLAW DAILY: And the judge denied all three of those motions?

WOODS: Yes, she did. And at the end of the case, the government accused us of cherry-picking the best witnesses. And the judge said, Excuse me, isn't that what advocates are supposed to do? Do you want them to put on their weaker witnesses? It's our job to put on a strong case, and the government did not meet that challenge.

Not only that -- they challenged just about everything we tried to introduce at trial. Do you know they would not stipulate to a Tweet from Admiral [Mike] Mullen [chair of the Joint Chiefs of Staff]? They would not stipulate to a Tweet! They fought against the admission of testimony from a Senate hearing at which Mullen testified. It was ridiculous.

AMLAW DAILY: They also expended a lot of energy challenging the standing of the Log Cabin Republicans to act as plaintiffs in the case, right? It seemed like you spent a lot of time trying to prove that your witnesses were members of the Log Cabin group at the time of the filing. Whether or not the witnesses paid dues was actually important evidence. That surprised me, considering the case is about what seem to be some pretty interesting ethical issues, but I suppose standing is a key issue in any case, right?

WOODS: It didn't surprise me. The government has been all over standing issues in every "Don't Ask, Don't Tell" case. It is part of their standard playbook.

AMLAW DAILY: So now you have to file papers requesting an injunction that would bar "Don't Ask, Don't Tell" not just in California but nationwide?

WOODS: That's right. And what we really want to know is: Will the president appeal? Remember, this president has called for the end of "Don't Ask, Don't Tell." During my closing, I called those remarks the greatest party admissions in the history of party admissions. These were the president's prepared remarks! And he made them multiple times!

To AG Holder: Please step up to the plate on prison rape

From the NY Review of Books:

A new report by the Bureau of Justice Statistics (BJS) provides grim reaffirmation of something we already knew: sexual violence is epidemic within our country’s prisons and jails. According to the report, 64,500 of the inmates who were in a state or federal prison on the day the latest BJS survey was administered had been sexually abused at their current facility within the previous year, as had 24,000 of those who were in a county jail that day—a total of 88,500 people.

In fact, the true national total is much higher. The BJS numbers don’t include thousands who we know are sexually abused in juvenile detention and other kinds of corrections facilities every year, nor do they account for the constant turnover among jailed detainees. Stays in jail are typically short, and several times as many people pass through jail in a year as are held there on any given day. Overall, we can confidently say that well over 100,000 people are sexually abused in American detention facilities every year.

As appalling as this figure is, mere numbers can obscure what is at issue here. So consider the case of Scott Howard. Scott was a gay, non-violent, first-time inmate in a Colorado prison when he was targeted by members of the “2-11 crew,” a white supremacist gang with over 1,000 members in prisons throughout the state. For two years he was forced into prostitution by the gang’s leaders, repeatedly raped and made to perform oral sex. Even after he told prison staff that he was being raped and needed protection from the gang, Scott was told that nothing could be done unless he named his abusers—even though they had threatened to kill him if he did. Because Scott is openly gay, some officials blamed him for the attacks, saying that as a homosexual he should expect to be targeted by one gang or another. And by his account, even those officers who were not hostile didn’t know how to respond to his reports, because appropriate procedures were not in place. They failed to take even the most basic measures to protect him.

Ultimately, despite his fear, Scott did identify some of the gang members who had raped him. Not only did the prison authorities again fail to respond, they later put Scott in a holding cell with one of his previous assailants on the day he was to be released from state custody. Again, he was beaten and forced to perform oral sex. Scott had a civil lawsuit settled in his favor recently, winning financial damages and seventeen policy changes that will now become mandatory in the Colorado prison system. Otherwise, however, nothing about his story is unusual.

In 2003 Congress passed the Prison Rape Elimination Act (PREA), legislation that, among other things, called into being the bipartisan National Prison Rape Elimination Commission (NPREC), a panel of experts charged with devising national standards for the detection, prevention, reduction, and punishment of sexual abuse in detention. But the implementation of these standards is now being held up, because, as Attorney General Eric Holder has explained, according to PREA the new rules should not “impose substantial additional costs compared to the costs presently expended by Federal, State, and local prison authorities.”

Last September, the Justice Department commissioned Booz Allen Hamilton to study what it would cost to implement the NPREC standards. Unfortunately, the results of that study are too flawed to be of much use. Even more concerning is that Mr. Holder has commissioned no study of the benefits of reducing prisoner rape; nor, apparently, does he plan to. Yet as a brief submitted to the Department of Justice by New York University Law School’s Institute for Policy Integrity makes clear, “substantial additional costs” can only be understood in relation to the standards’ projected benefits. Moreover, Mr. Holder is legally obligated to analyze the costs and the benefits of the new standards together: he cannot give greater emphasis to one half of the calculation than the other. By failing to perform proper analysis, the Attorney General is delaying the reform mandated by a unanimous Congress in passing PREA—and he has already missed his statutory deadline for issuing a final rule on the standards by more than two months.

Prisoner rape is far more a legal and moral issue than a financial one. Since cost considerations are impeding reform, however, it is worth taking a closer look at the true financial implications of sexual abuse behind bars. There are at least two ways in which the Department might try to estimate the value of reducing sexual abuse in detention. One—called “contingent valuation,” and used frequently by environmental economists—seeks to assign dollar-values to goods not traded in the marketplace. Using its techniques, a recent study concluded that the public values the prevention of a single incident of rape or sexual assault at $237,000, a greater worth than it places on preventing any other kind of crime except homicide.

Alternately, the Justice Department can try to quantify particular, identifiable savings and benefits of preventing prisoner rape, and weigh them against particular, quantifiable costs. The costs (no matter how benefits are measured) are the investments needed by corrections systems to comply with the recommended standards, divided by the Department’s estimation of the percentage by which the standards will actually reduce sexual abuse in detention. As for the benefits, a partial list of those to be considered might begin with the medical cost of treating rape victims, which must be shouldered by corrections systems. This is much more expensive in the prison setting than in the general community, because inmates must be transported to often-distant hospitals and escorted the whole time by security staff. And it is a cost that must be paid, not for every victim of prisoner rape, but for every instance. We can deduce from the new BJS study that victims of sexual abuse in detention suffer an average of three to five incidents apiece.

Dawn Johnsen and Obama's failure of nerve, or, Lani Guinier revisited

Character assassination is their stock in trade. Guilt by association is their motto.  They have created such a wave of fear and uncertainty that their attacks upon our liberties go almost unchallenged.

Harry Truman, 1951

It was not a surprise that President Obama withdrew the nomination of Dawn Johnsen, who I've written about before and who was endorsed by the NY Times to be Assistant Attorney General for the Office of Legal Counsel. Her nomination had been swinging in the wind for a year, the target of a right-wing attack based both on her years as an abortion rights advocate, including her work for NARAL, and her writings as a constitutional law professor attacking the Bush era OLC for its perversions of justice, including production of the torture memos. These two failures of what is taken to be political smarts - i.e., the willingness to say what one believes and what needs to be said - can be fatal for anyone swimming in the mental pablum that passes for mainstream national politics. 

As it so happens, I've known Dawn for many years, know her to be a superb lawyer, a person of real integrity, and about as perfectly qualified to lead OLC (in part because she worked as a staff lawyer there in the Clinton administration) as one can imagine. (Little known fact: she's also a Sunday school teacher.) Funny thing - there's this other woman I've known for years - Lani Guinier, whose nomination as Assistant AG for the Civil Rights Division was withdrawn by President Clinton. And she is - guess what - a superb lawyer, a person of real integrity, and was about as perfectly qualified to lead Civil Rights (in part because she had worked as a staff lawyer there in the Carter administration) as one can imagine. (Don't know if she's a Sunday school teacher.)

I can easily imagine the calculation behind these withdrawals - that the Senate vote (at least on cloture) likely would have come up short to confirm either nominee. And I would bet that in both instances there were Dems from conservative states who were asking the White House not to force them to vote. Clinton folded within a few months on Lani's nomination; Obama should get credit for persisting with Dawn's for more than a year, but for the fact that his nerve failed at precisely the moment that it could have made a difference, when she was not included in his March list of recess appointments.

More important than anything about either President, though, is that these two stories signal the continuing power ceded to the right wing to left-bait, race-bait or, increasingly, gay-bait nominees whose values, experience and intellect make them among the most likely to be genuinely outstanding public servants. Not to mention those whose names are tossed out as too controversial to even nominate or who don't want to go through the heartburn of the process. Every time that happens, it's another little victory for the right wing.