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Exclusive Analysis: DADT Judge Establishes High Hurdle For Obama’s DOJ

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Judge Rules DADT Military Speech Content-Based. Decision Establishes Constitutional Legal Scrutiny Under First Amendment—High Hurdle for Obama’s DOJ to Overcome.

EXCLUSIVE ANALYSIS — By Tanya Domi

Editor’s note: Tanya L. Domi is an Adjunct Assistant Professor of International and Public Affairs at Columbia University and served fifteen years in the U.S. Army. She is a regular contributor to The New Civil Rights Movement.

NEW YORK, Oct. 12, 2010—Judge Virginia Phillips of the Federal District Court in Riverside, California issued an order today to the Obama Administration to immediately cease enforcement of the disputed “Don’t Ask, Don’t Tell” law—including investigations and discharges.

In an incisive and sweeping decision that arguably takes the heart out of “Don’t Ask, Don’t Tell” (DADT), Judge Phillips found that the government does not have the constitutional right, even in the military, to restrict or punish service members who engage in protected acts of speech, including identifying themselves as being gay.

Judge Phillips wrote in her review while recognizing the legally established rule of deference by the courts to the military, permitting some restrictions on military speech, that DADT did not survive “constitutional scrutiny” because it “has a sweeping reach of the restrictions of speech contained in the statute which are far broader than is reasonably necessary to protect the substantial government interest.”

In a damning litany, Phillips cited numerous examples of how DADT prevented plaintiff witnesses Michael Almy and Anthony Loverde from discussing their personal lives or comfortably socializing off-duty with their respective colleagues. Jenny Kopfstein, another plaintiff witness, testified that DADT made it impossible for her to respond to mundane questions from shipmates about how she spent her leisure time away from duty without revealing the existence of her partner.

In bolstering her decision through these examples, Judge Phillips asserted that DADT’s “restrictions on speech not only are broader than reasonably necessary to protect the government’s substantial interest,” but also actually “serve to impede military readiness and unit cohesion, that than further these goals.”

Indeed, Judge Phillips makes a specific point in the decision to assert the chilling effect that DADT had on the speech and actions of plaintiffs Alex Nicolson and Joseph Rocha, who were consequently afraid to bring violations of military policy or codes of conduct to the attention of the chain-of-command. In their testimony, Nicholson and Anthony Loverde also acknowledged the similar chilling effect on their speech when overhearing or being subjected to homophobic slurs or taunts.

Furthermore, Judge Phillips expressly pointed to additional acts of repressed speech which include prohibitions on openly joining organizations who advocate the repeal DADT, such as Log Cabin Republicans; writing personal letters, even in a foreign language to a person of the same-sex whom they had had an intimate relationship with before joining the military; and certain discharge for confiscation of private emails to family and friends that may reveal their sexual orientation, when heterosexuals are exempt from such punitive scrutiny.

Phillips also ruled that the government did not meet the Witt Standard with respect to its policy of prohibiting openly gay soldiers based upon a long maintained rationale of “unit cohesion and military readiness.” She ruled that DADT does not further the significant interests of the government. In fact, she asserts the government actually delays discharges based upon sexual orientation when individuals are judged to be necessary, especially when deployed in combat locations.

The Lawrence Supreme Court decision was cited by Judge Phillips on numerous occasions, but most decisively with respect to “constitutionally recognized substantive due process rights associated with the autonomy of self that includes freedom of thought, belief and expression.” Lawrence portends to be a significant decision in all-future cases involving LGBT rights.

Tanya L. Domi is an Adjunct Assistant Professor of International and Public Affairs at Columbia University, who teaches about human rights in Eurasia and is a Harriman Institute affiliated faculty member. Prior to teaching at Columbia, Domi worked internationally for more than a decade on issues related to democratic transitional development, including political and media development, human rights, gender issues, sex trafficking, and media freedom.

Domi has worked in a dozen countries. Prior to working abroad, she became a nationally known LGBT rights activist in the United States as the legislative director and military freedom initiative director at the National Gay and Lesbian Task Force, where she worked to repeal the ban on lesbians and gays who served in the military and was directly involved in drafting and original introduction of the Employment Non-Discrimination Act in 1994. She has been actively involved in the effort to repeal DADT during the past two years as a blogger and speaker, with expertise as a result of her 15 years of service in the U.S. Army as an enlisted soldier and commissioned officer.

Domi has a Masters of Arts in Human Rights from Columbia University, with a regional specialty in East Central Europe and The Balkans.

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‘Isn’t There a Beach in Mexico Waiting for You?’: Cruz Mocked for Claiming Garland Will Indict Trump Over SCOTUS Seat Loss

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June 6, 2023

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U.S. Senator Ted Cruz (R-TX) is being roundly mocked after claiming Attorney General Merrick Garland will indict Donald Trump because he “hates” the ex-president and because he is angry his early 2016 nomination to the U.S. Supreme Court was blocked.

“They hypocrisy is massive,” Sen. Cruz declared on Fox News Monday night. “And mark my words: I believe Merrick Garland will indict Donald Trump. He wants to indict Donald Trump because he hates Donald Trump. He hates him – he’s angry – Merrick Garland is angry that he wasn’t confirmed to the Supreme Court. he wants to indict him.”

Cruz, who has a law degree from Harvard, is wrong on the basic facts, and he’s being widely mocked for it.

As many are pointing out, first, Attorney General Garland appointed Jack Smith as Special Prosecutor. Smith, who was appointed as Acting U.S. Attorney by Donald Trump in 2017, will make the decision on whether or not to present charges to a grand jury. The grand jury, not Garland and not Smith, will make the decision on whether or not to indict Trump.

Also, whether or not Garland has any anger about not being confirmed by the U.S. Senate, that anger would rightly be pointed to then Senate Republican Majority Leader Mitch McConnell, who took the unprecedented step of refusing to even allow a committee hearing to consider his nomination.

READ MORE: Jim Jordan Demands Merrick Garland Hand Over Documents Authorizing Special Counsel’s Trump Investigation

McConnell did that in early 2016, even before Trump was the GOP’s presidential nominee. Trump had nothing to do with blocking Garland’s nomination to the U.S. Supreme Court.

“This is dangerous,” warned foreign policy and intelligence expert John Sipher, who spent nearly three decades in the Central Intelligence Agency’s National Clandestine Service. “He knows what he’s doing and he’s risking violence.”

After Cruz’s Fox News appearance, he posted video of his own remarks and baselessly tweeted, “Merrick Garland is the most partisan Attorney General in American history. He has corrupted the DOJ, the FBI, and the machinery of government. And now, out of nothing but a sense of hatred and political retribution, Garland is trying to indict Trump.”

Later, on Tuesday he added, “Merrick Garland has corrupted the Department of Justice and effectively turned it into an arm of the Democratic National Committee. The FBI and DOJ want to protect and insulate Joe Biden and the Biden family’s corruption.”

None of his allegations have any basis in publicly-known fact.

Cruz came under fire in 2021 after advising Trump’s legal team during the ex-president’s second impeachment, even though he would also be a juror – and supposedly impartial – in Trump’s Senate trial. In December of 2020 Cruz told Trump he would “be happy” to argue a proposed Supreme Court lawsuit designed to keep Trump in power despite having lost the election one month earlier.

Author Cliff Schecter labeled Cruz’s claims on Fox News, “Complete horses*t, which is Ted’s brand.”

READ MORE: ‘This Is It, Make No Mistake’: ‘Nihilistic Moron’ Trump Heading for Another Indictment Says George Conway

“But, if true, Garland would be doing more re his SCOTUS rejection than @tedcruz did when Trump called his wife ugly,” he added. “Ted doesn’t get why Garland wouldn’t just make hostage video phone calls for Trump’s campaign.”

Historian and author Kevin M. Kruse: “The line that ‘they’re only indicting Trump for the crimes Trump clearly did because they hate Trump’ is pathetic when it comes from Trump himself, but Jesus Christ, it is twelve kinds of sad when it comes from one of his lickspittles.”

Reporter and award-winning columnist David Lazarus noted, “Republicans keep insisting Trump is being investigated and prosecuted because people in power hate him. That’s one theory. Or Trump is being investigated and prosecuted because he kept breaking the law.”

Lincoln Project co-founder Jennifer Horn, a former New Hampshire Republican State Committee chair, blasted Cruz.

“I’m sure it has nothing to do with classified documents or inciting an insurrection,” she said, referring to the two major portions of Smith’s investigation. And referring to Cruz’s infamous exit during a state-wide crisis when he hightailed out to Cancun, she asked: “Isn’t there a beach in Mexico waiting for you?”

Watch video of Cruz above or at this link.

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Jim Jordan Demands Merrick Garland Hand Over Documents Authorizing Special Counsel’s Trump Investigation

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June 6, 2023

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House Republican Judiciary Committee Chairman Jim Jordan has sent a letter to Attorney General Merrick Garland demanding documents related to Special Counsel Jack Smith‘s two-tiered investigation into Donald Trump.

Chairman Jordan’s letter (below) comes just days before Smith’s grand jury is expected to reconvene after a short hiatus, and one day after Trump’s legal team met with DOJ investigators, including Smith.

Jordan is asking Garland to hand over an unreacted, full version of the memo that authorized Smith’s appointment as Special Counsel to investigate Trump, along with all supporting documentation. NBC News first reported on the existence of the letter.

Jordan, a staunch ally of Donald Trump, is claiming his request is part of his committee’s investigation into “the Federal Bureau of Investigation’s (FBI) unprecedented raid of President Trump’s residence at Mar-a-Lago on August 8, 2022.”

READ MORE: ‘This Is It, Make No Mistake’: ‘Nihilistic Moron’ Trump Heading for Another Indictment Says George Conway

The letter in part states, “we write to request an unredacted copy of the memorandum outlining the scope of Mr. Smith’s probes regarding President Trump and any supporting documentation related to his appointment as special counsel. Accordingly, please provide the Committee with an unredacted copy of the memorandum outlining the scope of Special Counsel Smith’s investigations pursuant to his appointment on November 18, 2022, and any other document describing, listing, or delineating the authority and jurisdiction of the special counsel as soon as possible, but no later than 5:00 p.m. on June 20, 2023.”

Legal experts across the board anticipate Smith will ask the grand jury to indict the ex-president on a litany of federal felonies centered on his unlawful removal from the White House, retention, refusal to return, and possible sharing of classified and top secret documents. That indictment appeared even more likely after it as reported Smith has audio of Trump admitting he held on to a Pentagon document he knows is classified, and allegedly said he would like to be able to share it. Some experts say an indictment could come as early as this week.

Read Jordan’s letter below or at this link.

 

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‘This Is It, Make No Mistake’: ‘Nihilistic Moron’ Trump Heading for Another Indictment Says George Conway

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June 6, 2023

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George Conway mocked Donald Trump as a “nihilistic moron” for risking years in prison by hoarding classified documents at his private resort at Mar-a-Lago.

The former president appears to be headed toward a second indictment, after he was charged with fraud in Manhattan, and panelists on MSNBC’s “Morning Joe” discussed the latest developments in the quickening investigation by special counsel Jack Smith in the Mar-a-Lago case.

“There is a sense of real panic growing at Mar-a-Lago, reflected in Trump’s Truth Social tweets but also those even calmer heads in the room say, ‘Look, we’re concerned, we feel like a charge could be coming.'”

Trump’s attorneys met Monday with officials at the Department of Justice to argue against an indictment, and conservative attorney George Conway said that showed an indictment was likely imminent.

FROM EARLIER: William Barr: ‘Unguided missile’ Rudy Giuliani completely to blame for first Trump impeachment

“We are approaching the very end,” Conway said. “I kept hearing this ear worm in my head as I was coming to the studio this morning, ‘This is it, make no mistake.’ We’re getting down to the final strokes of this race, and what’s clearly really remarkable about it is that of all the things that this man has done, eight decades of lying and cheating and stealing, this case, this documents case, is probably the easiest, shortest, simplest and yet carries the most severe penalties, likely penalties, of any of the cases, any of the legal issues that he’s ever faced.”

“Now people will say, you know, he really, in a just world, he would go to jail for what he did on Jan. 6, the weeks approaching Jan. 6,” Conway added. “And I kind of agree with that, but for this man who is basically a nihilistic moron, for him to go to jail potentially for a long time, these Espionage Act charges bring very heavy sentences to potentially go to jail for something so pointless and silly and useless as keeping these documents is actually kind of fitting.”

Watch the video below or at this link.

Image by Gage Skidmore via Flickr and a CC license

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