Don't Ask, Don't Tell? Don't Say!

It's been many years since Nordicus served in the military.  In my day, I think it would have been inappropriate to let openly homosexual members serve.  However, times change.  I think the bias has to be that if it is legal in society, it should be legal in the military - unless the military can present a good case for an exeption.

So, the repeal of "Don't Ask, Don't Tell" (DADT) is okay in my books - I suppose.  Even more important, it takes off the table a constitutional crisis: A federal judge's decision to usurp military powers that are divided between Congress and the President alone.  Back in September, a federal judge in San Diego tried to get into the history books by deciding that DADT is unconstitutional.  As with all activist decisions, you'll have trouble maintaining self-control if you try to read the thing.

Much of the 86-page decision is dedicated to discussing the "social-science" research pertaining to homosexuals in the military - which is none of the judge's concern.  Her only concern should be the constitutionality of DADT.

She found that DADT violates the homosexual service-members 1st Amendment rights, because DADT prevents them from talking freeling about their sexual orientation.  She also found that DADT violates the 5th Amendment, because it takes away service-members' right to due process.

Both findings are grotesque.  The Constitution (Art. 1, sec. 8) enumerates a power to Congress "To make Rules for the Government and Regulation of the land and naval Forces."  The President, of course, is the "Commander in Chief of the Army and Navy of the United States" (Art. 2, sec. 2).

Article 3, which defines the judicial power, gives no authority whatsoever to the judiciary to interfere with congressional or presidential power over the military.  And for good reason:  If we were to take the September court decision seriously, the government would be unable to prosecute PFC Manning for leaking classified information to WikiLeaks.  After all, he was just exercising his 1st Amendment rights!  Furthermore, DADT was passed by Congress after a lengthy public debate and struggle with President Clinton.  If that's not "due process," then what is?

I suppose I'm glad that Congress has repealed DADT, but it would have been interesting to see what the president would have done in response to persistent judicial usurpation of this power.  (Just kidding: I'm sure President Obama would have done nothing.)