Advocates Claim DOJ Misrepresented Depositions To Bolster Case In Support Of Don’t Ask, Don’t Tell

Earlier this week, AmericaBlog broke the news that the Department of Justice was defending the constitutionality of Don’t Ask, Don’t Tell by recycling General Powell’s statements from nearly two decades ago without noting that Powell has since reversed himself on the issue. The department’s brief regurgitated numerous conservative talking points and seemed to contradict the administration’s commitment to repeal the policy before the end of the year. Now it appears that that the DOJ twisted the statements of DADT repeal advocates to substantiate its argument.

Palm Center Director Aaron Belkin and Senior Fellow Nathaniel Frank gave depositions in the case of Log Cabin v. United States and they are now claiming that the DOJ misrepresented their arguments about “whether privacy concerns for service members constituted a rational basis for the enactment of “Don’t Ask, Don’t Tell” in 1993.” DC Agenda has obtained a copy of the brief and reports that “Frank was asked about privacy issues in the context of whether former Chairman of the Joint Chiefs of Staff Gen. Colin Powell’s statement in 1993 that service members ‘are required to live in communal settings that force intimacy and provide little privacy” was based on professional military judgment.’” “Frank replied that Powell — whose position has since evolved to endorse the Pentagon’s process for repealing the law — may have had concerns with privacy as a general matter based on professional judgment, but said Powell’s statement doesn’t ‘constitute an argument for keeping out open homosexuals.’” The brief, however, claims that “Frank ‘acknowledged’ during his deposition that ‘privacy concerns such as those on which Congress relied were not irrational.” Belkin claims that the DOJ brief similarly misrepresented his disposition:

But Belkin said the Justice Department’s account of his deposition and his alleged acknowledgement of a rational basis for privacy concerns was completely off the mark.

“People who defend ‘Don’t Ask, Don’t Tell’ for almost 20 years have been confusing up with down and left with right,” he said. “If the Obama administration lawyers think that my remarks in any way constitute an acknowledgement of the rational basis for the privacy rationale, then they need a new legal team.”

In other words, it’s one thing to argue in favor of the policy in the process of defending current law; it’s another thing entirely to buttress that argument by misrepresenting the depositions of DADT opponents and recycling Powell’s support for the policy without noting that he now opposes it. After all, if DOJ has to pad its argument with false or out dated arguments, how strong is the case for maintaining DADT? And why is the department going to such great lengths to defend a soon-to-be changed policy?


If Belkin and Frank are on point, then someone is clearly sabotaging the administration’s policies and Chris Geidner has it right when he says that the Obama “could — and should — blunt the impact of the filing by announcing that it plans to insert DADT repeal language in the Defense Department budget request that it will be submitting to Congress in the coming weeks.” “The administration likewise should stop, as Rep. Barney Frank told me last week, ‘ducking’ on the issue of whether it remains committed to the repeal of DADT this year. Talking about a civil-rights issue on which the majority of people in the country agree with you is not a bad idea, either morally or politically.”

Indeed, the administrations’ failure to provide any kind of timeline for repeal and its complete reliance on the Pentagon to complete its study only gives opponents of repeal an opportunity to organize and blunt any successful legislative effort. If the health debate taught the administration anything, it’s this: “Never put off till tomorrow what you can do today.”