Scott Horton, a lawyer known for his work in human rights law (as well as the law of armed conflict), is well-placed to discuss Attorney General Eric Holder's position on defending DADT. In a brief post at
Harpers, "
Why Holder Defends DADT", Horton gives the "lawyerly" reason for Holder's defense — then eviscerates it.
First the lawyerly defense, from Bush-era Solicitor General Paul Clement as quoted in the
Associated Press:
President Barack Obama opposes the Pentagon’s “don’t ask, don’t tell” policy on gays in the military, so why are Obama administration lawyers in court fighting to save it? The answer is one that perhaps only a lawyer could love: There is a long tradition that the Justice Department defends laws adopted by Congress and signed by a president, regardless of whether the president in office likes them. This practice cuts across party lines. And it has caused serious heartburn for more than one attorney general.
The tradition flows directly from the president’s constitutional duty to take care that the laws are faithfully executed, says Paul Clement, who served four years in President George W. Bush’s administration as solicitor general, the executive branch’s top lawyer at the Supreme Court. Otherwise, Clement says, the nation would be subjected to “the spectacle of the executive branch defending only laws it likes, with Congress intervening to defend others.”
A nice, concise statement of the Obama administration's argument, and reasonable on its surface. But this is the Bush II Solicitor General talking, which counts as low-hanging fruit. Horton sarcastically comments:
Of course this perfectly explains the performance of the Justice Department while Mr. Clement was near its helm. For instance, the Justice Department didn’t like the Anti-Torture Statute, but it enforced the statute anyway, which is why so many senior officials of the Bush era were prosecuted and sent to prison for their programmatic endorsement of torture and official cruelty, which are felonies. And, even though the Justice Department did not approve of the Foreign Intelligence Surveillance Act and its felony counts for warrantless surveillance by federal agents, it faithfully implemented the statute, which again explains a slew of very unpleasant prosecutions of senior government officials
Sadly, we're left with the impression that Holder is defending DADT in part because Bush II officials are arguing that he should. At the very least, Holder is arguing the same case that Bush II lawyers are making, a case they never followed when they were in charge. Horton calls this position "schizophrenic."
He ends by quoting Ted Olson, himself a former Solicitor General, in defense of Holder letting the lower court ruling stand. Can't get much more Republican than that.
All in all, an excellent take-down from Horton.
GP
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