Protection Breakdown

Protection Breakdown
By Jed Babbin on 12.6.10 @ 6:08AM

The perversity of President Obama's priorities was proved again twice last week. First, by our comprehensive failure to use our cyberwar capabilities to disable and disrupt the Wikileaks website's release of a quarter of a million State Department classified cables. Second, in Secretary of Defense Robert Gates's insistence that Congress repeal the "Don't Ask, Don't Tell" law before the lame duck session ends because he fears the courts will do so more inconveniently than Congress would.

Wikileaks -- anarchist Julian Assange's website -- has over the past four months published three huge groups of U.S. secret documents. Since the latest batch of documents was published, Wikileaks has been under intermittent cyber attacks, for which Assange & Co. blame the United States.

But U.S. Cyber Command, according to a Pentagon spokesman, has had no hand in the attacks because it's legally barred from doing so. The attacks on Wikileaks have reportedly been the work of a "hacktivist" who calls himself "Jester" and is said to be a former U.S. special operations trooper.

But think about that. We've had more than four months -- probably about nine months -- since we learned that Wikileaks had been given hundreds of thousands of classified documents and would publish them. Even four months is an eternity in cyberwar, a period in which new weapons can be developed and employed several times over. Cyber Command -- or one of the intelligence agencies that have vastly more flexible mandates -- could have used their enormous resources to prevent publication by all sorts of cyberwar attacks. Why didn't they? Because the White House, the Pentagon, and the State Department didn't ask them to do it.

It was a choice made by the White House that is, itself, a scandal. It's not only our right to protect our secrets, it's the Obama administration's duty which they chose to ignore.

Defense Secretary Gates told the Senate Armed Services Committee that Congress had to act before the end of the lame duck session to repeal the "Don't Ask, Don't Tell" law. Gates claimed that if Congress didn't act, the courts would overturn the law too quickly and not allow the Defense Department enough time to implement a policy to allow homosexuals to serve openly.

But Gates's claim of urgency is a strawman that the Obama administration created by failing to defend the law in court.

The September decision in the Log Cabin Republicans case -- in which the judge overturned the DADT law declaring it unconstitutional -- was the direct result of the Obama Justice Department's failure to defend the case. In Judge Virginia Phillips' decision, she notes -- not once, but three times -- that the Justice Department presented nothing in evidence other than the text of the law and its legislative history. In effect, it mounted no defense.

Where were the affidavits of then-Marine Commandant Gen. James Conway and other military leaders affirming the military necessity of the law? Where were the witnesses to offset the evidence presented by the Log Cabin lawyers, an endless stream of "expert" and lay witnesses, studies, and such?

They were not entered into evidence. And unless the Ninth Circuit reverses and remands to Phillips for further proceedings, the vacant record will be all the Ninth Circuit and the Supreme Court will be able to consider. Gates, Obama, and Attorney General Holder know this.

The urgency Gates claims is false. First, if the case were defended properly the matter wouldn't be resolved soon. The appeals would take years. And it clearly isn't a case the defense would definitely lose.

Article 1, Section 8 of the Constitution gives Congress the duty "to make rules for the government and regulation of the land and naval forces." The courts must -- and will -- defer to so clear a constitutional mandate if it is defended properly and skillfully. Which has not been done.

Judge Phillips' decision says that the government didn't meet its obligations of proof that the DADT policy "significantly furthers" the government's interests and that it is necessary to achieve those interests. It's easy to fail to satisfy that standard if you don't try. And the Justice Department didn't.

Phillips made several key findings in the absence of contrary evidence. Consider how puny the defense effort must have been in light of these findings.

She ruled that DADT impedes recruitment and contributes to troop shortages. But Joint Chiefs Chairman Adm. Mike Mullen testified last week that homosexuals represent only about two or three percent of the military, the same number they represent in the general population. How can that be a major impediment to recruitment and retention?

Another finding was that by causing the discharge of well-trained and competent service members the act harmed rather than helped unit cohesion and morale. But only last Friday Marine Corps Commandant Gen. James Amos testified that a repeal of Don't Ask, Don't Tell "…has strong potential for disruption and will no doubt divert leadership attention away from an almost singular focus of preparing units for combat." Amos, speaking of the active-duty Marines, said "We asked for their opinions, and they gave them to us. Their message to me is that the potential exists for disruption to the successful execution of our current combat mission should repeal be implemented at this time."

Gen. Amos's opinion isn't new. His predecessor, Gen. James Conway, held the same views. Why didn't the Justice Department present that evidence to Judge Phillips? It can only be that it was complicit in the effort to overturn the DADT law.

The professional military is nearly unanimous in opposing a repeal of the DADT law. Why then is Bob Gates pushing it so hard that he would participate in the White House's effort to repeal it?

Gates has made no secret of his plan to leave the Defense Secretary post next year. He undoubtedly has further ambitions.

Gates may be positioning himself to become the next Secretary of State. If Hillary leaves, his path would be open if, and only if, the president believes he is an effective tool to be used to achieve Obama's future political goals. To put himself in line for that or some other key position, Gates has overreached on DADT and alienated the military professionals as has Adm. Mullen.

Mullen has gone even farther than Gates. In last Friday's hearing, he dismissed concerns that Marines would refuse to re-enlist if DADT were repealed saying, "We'll deal with that."

Mullen's words reminded me of the famous New York Daily News headline when President Gerald Ford told New York City that he wouldn't bail it out financially. The headline said, "Ford to City: Drop Dead." The headline that should have followed Mullen's sneering statement should have been, "Mullen to Marines: Drop Dead." I wonder if Secretary Gates, in some future confirmation hearing or election, should he choose to run for the Senate, would be eager to answer if he agreed with Mullen's statement.

Mullen, who seeks reappointment next year, should not be confirmed. He and Gates need to know that the Marines' motto -- "Semper Fidelis," always faithful -- means not only that Marines are always faithful to their duty, but that we have a duty to be faithful to them.

I stand with the Marines. Where do you stand, Dr. Gates?