Today the Obama administration defended “Don’t Ask, Don’t Tell” in court. They went so far as to argue that it’s constitutional, and then they quoted Colin Powell, from 17 years ago, saying all sorts of hideous things about gays serving in the military, which was bad enough – even worse, they didn’t bother mentioning that Powell has now pretty much recanted all of that.
Anyway, here’s the lie from DOJ spokeswoman Tracy Schmaler, then I’ll give you lots of proof to show that she just lied to every single one of you:
Tracy Schmaler, a Justice Department spokesman, reiterated the administration’s opposition to the don’t ask, don’t tell policy, and its goal of repealing “this discriminatory law.”
“In this case the Department is defending the statute, as it traditionally does when acts of Congress are challenged,” she said. “The Department does not pick and choose which federal laws it will defend based on any one Administration’s policy preferences.”
Several problems here.
1) We are told that “traditionally” the department defends statutes, regardless of how vehemently the administration disagrees with the law. That is a lie, and it’s one that Joe and I have been fighting back against for 8 months now. The first time DOJ, and the Obama administration generally, trotted out this lie was during the DOMA brief fiasco last June (this was the brief defending the anti-gay Defense of Marriage Act by invoking incest and pedophilia, among other things). At the time, the administration said they had no choice but to defend the bigoted law in court. That was untrue. To prove it, we did two things.
A) We pointed to four different court cases in which the Reagan, HW Bush, Clinton, and W Bush administrations went to court and refused to defend a law that they believed unconstitutional (thanks to activist Paul Sousa for finding the cases). And I quote our post from last June:
In fact, George W. Bush (ACLU et al., v. Norman Y. Mineta – “The U.S. Department of Justice has notified Congress that it will not defend a law prohibiting the display of marijuana policy reform ads in public transit systems.”), Bill Clinton (Dickerson v. United States – “Because the Miranda decision is of constitutional dimension, Congress may not legislate a contrary rule unless this Court were to overrule Miranda…. Section 3501 cannot constitutionally authorize the admission of a statement that would be excluded under this Court’s Miranda cases.”), George HW Bush (Metro Broadcasting v. Federal Communications Commission), and Ronald Reagan (INS v./ Chadha – “Chadha then filed a petition for review of the deportation order in the Court of Appeals, and the INS joined him in arguing that § 244(c)(2) is unconstitutional.”) all joined in lawsuits opposing federal laws that they didn’t like, laws that they felt were unconstitutional. It is an outright lie to suggest that the DOJ had no choice.
So traditionally the President only defends heinous cases when he wants to.
B) We asked Richard Socarides, a lawyer who served as a top adviser to President Clinton in the White House, to write us a piece explaining just what options the President has when his Justice Dept has to go to court to defend a law he claims not to like. Here is what Richard wrote at the time – this is important:
I was equally troubled by the administration’s explanation that they had no choice but to defend the law. As an attorney and as someone who was directly involved in giving advice on such matters to another president (as a Special Assistant for civil rights to President Bill Clinton), I know that this is untrue.
No matter what the president’s personal opinion, administration officials now tell us that the US Department of Justice (DOJ) must defend the laws on the books, and must advance all plausible arguments in doing so. Thus, the theory goes, the DOJ was just following the normal rules in vigorously defending the anti-gay law.
I know and accept the fact that one of the Department of Justice’s roles is to (generally) defend the law against constitutional attack. But not in all cases, certainly not in this case – and not in this way. To defend this brief is to defend the indefensible.
From my experience, in a case where, as here, there are important political and social issues at stake, the president’s relationship with the Justice Department should work like this: The president makes a policy decision first and then the very talented DOJ lawyers figure out how to apply it to actual cases. If the lawyers cannot figure out how to defend a statute and stay consistent with the president’s policy decision, the policy decision should always win out.
Thus, the general rule that the DOJ must defend laws against attack is relative – like everything in Washington.
They had a choice, and in fact, they did not follow “tradition.” As Richard just explained, the tradition is to keep the Justice Department’s action in line with the President’s policies. Period. That’s the way it works.
2. Perhaps the biggest lie from Justice Department spokeswoman Tracy Schmaler is the following:
“The Department does not pick and choose which federal laws it will defend based on any one Administration’s policy preferences.”
Policy preferences? Is that what our civil rights, and clear promises from the President during the campaign, have now transformed into – simple “policy preferences”?
But back to the substance, what Tracy Schmaler just told you is a flat out lie.
As we have shown, over and over again, the Obama administration is more than happy to look the other way on laws that don’t agree with their “policy preferences.” I’m not saying that they go to court and argue against the laws, I’m saying that they simply ignore them. The gay community and our allies are simply asking the Obama administration to help us strike down DOMA and DADT in court – we’ve never asked them to simply ignore the law. But that is exactly what they do when other communities, other administration policy preferences, are in play.
A) Last October the Obama administration outright ignored federal law regarding marijuana because it was at odd’s with the administration’s policy preferences with regards to medical marijuana.
B) Then there is President Obama’s use of signing statements to simply ignore laws passed by Congress.
C) Then there’s this from the NYT just two months ago:
T]he approach will make it harder to keep track of which statutes the White House believes it can disregard….
[T]he administration will consider itself free to disregard new laws it considers unconstitutional….
Mr. Obama nevertheless challenged dozens of provisions early last year. The last time was in June, when his claim that he could disobey a new law requiring officials to push the World Bank and the I
nternational Monetary Fund to adopt certain policies angered Congress….
Last year the Obama administration disregarded a statute that forbid State Department officials to attend United Nations meetings led by nations deemed state sponsors of terrorism. Congress has included that restriction in several recent bills.
D) Then there was the time that the Obama administration refused to enforce immigration laws because they didn’t comport with the administration’s policy preferences.
Need I go on?
Tracy Schmaler at the Department of Justice is either a liar, or grossly misinformed. Either way, what she told Josh Gerstein of Politico today was absolutely false, and she has no business speaking to the media, or to our community.
For some reason, and it’s clearly not a legal one, the Obama administration does not want to defend our civil rights in court (or much anywhere). They ought to just admit it outright, rather than lying to us about why it is they keep siding with the very same bigots who not long ago would have had a problem with a black President.