Opponents of the "Don't Ask, Don't Tell" policy have condemned President Obama for not doing enough to secure repeal and even for defending the law in court. But is it possible, just possible, that the president is employing a wily, covert strategy that all but guarantees the courts will find the law unconstitutional?
When the Pentagon released its report on the survey of support for "Don't Ask, Don't Tell" repeal among servicemembers, Obama released a statement declaring that the policy "weakens our national security, diminishes our military readiness, and violates fundamental American principles of fairness and equality." Similar statements were made by Defense Secretary Gates and Admiral Mullen.
For months, Democrats have wondered how to square statements such as these with the administration's actions in defense of the law.
The inconsistency may be explicable. The administration has to defend the "Don't Ask, Don't Tell" in court. For years, the official policy of the Department of Justice, under both Democratic and Republican administrations, has been that the Constitution's command that the president "take care that the laws be faithfully executed" imposes a duty to defend properly passed laws in court. Whether the president likes a law or not, he has a constitutional obligation to execute it.
Of course, this obligation puts President Obama in a bad spot on "Don't Ask, Don't Tell," which he has vowed to end.
That's where these strong statements about how the law is unnecessary for military readiness and combat effectiveness come in. These could be seen as simply rhetorical flourishes designed to appease his base of support. President Obama may yet have another reason for the public comments. His statements and those of the top military officials could be designed to insure that courts strike down "Don't Ask, Don't Tell."
In constitutional cases, the courts will allow the government to engage in discrimination only when the government has good reasons for treating people differently. Traditionally, the courts have upheld "Don't Ask, Don't Tell" because the military asserted that the policy was necessary for unit cohesion. Although there's never been much evidence to support this claim, the courts didn't want to second-guess the military.
Obama's statements fundamentally undermine the argument that "Don't Ask, Don't Tell" is required for military effectiveness. He's said, in fact, that the policy actually undermines that goal. So even though the Justice Department is arguing in court that the policy is needed, top military commanders, including the Commander-in-Chief, have admitted that the policy harms the military.
Indeed, two months ago, the federal judge who declared the policy unconstitutional cited the president's statements as evidence that "Don't Ask, Don't Tell" was not essential to any military objectives. Even if courts want to defer to the military, now top military officials are saying the policy is unnecessary.
President Obama, a former constitutional law professor, must know the expected consequences of his statements. So while he could be doing more to secure repeal in Congress, he may nonetheless still be helping kill "Don't Ask, Don't Tell" in the courts.
Of course, it may be that the president is not so cunning and strategic. Regardless, the effect of his words remains the same. When it comes to the constitutionality of "Don't Ask, Don't Tell," Obama's words may speak louder than his actions.