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!
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