03/18/2010 05:12 am ET | Updated May 25, 2011

The Pen-Stroke Fallacy

Andrew Sullivan speaks for many when he writes, "One Last Thing, Mr. President: If you believe it is wrong to fire people from their jobs solely because they are gay, as you said Saturday night, stop doing it."  But in order to "stop doing it" immediately, the president would have to stop obeying the law.

Yes, Harry Truman integrated the services by Executive Order. But there’s a crucial difference:  segregation had been a matter of practice, never enshrined in statute.  By contrast, Don’t Ask, Don’t Tell is law, enacted as a compromise after Bill Clinton’s bold, well-meaning, and disastrous attempt to keep his pledge to end discrimination against gays in the military “with a stroke of my pen.”

Yes, the president could use the same emergency powers used for "stop-loss" orders to end separations immediately.  But the text of the provision granting those powers reads:

The President may suspend any provision of law relating to promotion, retirement, or separation applicable to any member of the armed forces who the President determines is essential to the national security of the United States.

On any reasonable interpretation of the term “essential,” a finding that ending DADT separations is “essential to the national security of the United States” would be false,  Losing hundreds of servicemembers a year, out of an active-duty strength of just under 1.5 million, is costly to the services, and losing people in rare specialties, such as Arabists,  is especially costly, but it’s hardly devastating.  Does anyone actually believe that getting rid of DADT now rather than a year from now would change the odds of success in Afghanistan?

So the president would have to make a finding that is false-to-fact.  That would be a flagrant abuse of power. Is the Blue team suddenly in favor of abuses of presidential power, now that one of our own holds the presidency?

Of course, if the Pentagon requested that the president invoke “stop-loss” powers that would change things; the press, the Congress, and the public are all (excessively) willing to defer to the brass and the Pentagon feather-merchants when it comes to defining what is, and is not, “essential to the national security of the United States,” and the president could not reasonably be accused of abusing his powers if he did so at the request of the acknowledged experts. But equally of course, once the Pentagon was ready to make that request it would be ready to propose repeal of the underlying Don’t Ask, Don’t Tell legislation.  So all roads to success run through the Joint Chiefs and the Office of the Secretary of Defense.

Obama’s problem is to make the change bubble up from the services. And there's every indication that he is working on that, and succeeding.  He has already made his preference clear, and defying the president (unless he leads with his chin the way Bill Clinton did) is rarely a good career move.  A paper shredding the arguments for DADT, and explicitly comparing opposition to repeal to opposition to the racial integration of the armed services by Harry Truman, won a prize awarded by the Secretary of Defense and was published in the Joint Forces Quarterly.  Lt. Dan Choi was invited to speak at West Point.

None of that would be happening except as part of a plan to reverse course on DADT.  (And of course none of it would be happening under President McCain.)

A reversal of DADT that comes up from the bottom rather than down from the top will be much harder for a future Republican president to undo. Yes, patience in the face of injustice is hard.  But that doesn’t make impatience a virtue.

The thing has to be done, and it has to be done sooner rather than later, and it has to be done right.  Doing it right is more important than doing it instantly.  And doing it right is the opposite of “throwing the gay community under the bus.”

I have $100 that says Barack Obama will sign a bill repealing DADT before the end of the current Congress.  Any takers?


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