Land of the Free, Home of the Brave

      The Gay Men’s Chorus of Washington was all set Saturday night [Dec. 18] for its seasonal frolic “Men in Tights: A Pink Nutcracker.” But artistic director Jeff Buhrman wanted to begin on a serious note.
      A few hours earlier, the U.S. Senate had completed congressional action on a bill to repeal the “don’t ask, don’t tell” policy on gays in the military. In honor of the occasion, Buhrman asked the audience at George Washington University’s Lisner Auditorium to stand and join in singing “The Star-Spangled Banner.”
      It was an “emotional moment,” one friend later commented on Facebook, to hear so many gay and lesbian Americans join in a celebration of their patriotism. When younger, my friend wrote, “I’d have been so proud to have served my country openly as a gay man. Instead, I had to serve with a portable closet by my side to hide in.”
      Not yet but soon, thousands of gay men and lesbians already in the military and many others eager to join will be legally free to make up their own minds whether to stay in or come out of the closet. The hard-fought, down-to-the-wire victory gives Gay America something to celebrate this holiday season. Overall, however, both President Obama and the Democratic-controlled Congress get only middling grades for advancing LGBT rights.
      Obama took office amid much optimism among LGBT Americans and their straight allies. He had campaigned on a platform that included repealing “don’t ask, don’t tell” as well as the Defense of Marriage Act (DOMA), the 1996 law that prohibits federal marital benefits for same-sex couples. He also backed the Employment Non-Discrimination Act (ENDA) to prohibit job discrimination on the basis of sexual orientation. And he favored amending the federal hate crimes law to include offenses aimed at gays or lesbians.
      With the Democratic-controlled Congress about to yield to divided government on Capitol Hill, only two of those items have been approved. Neither has yielded concrete results.
      The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act became law in October 2009. But despite the recent flurry of news about gay-bashing and gay-bullying, the Justice Department has yet to invoke the law against any anti-gay offense.
      The “don’t ask, don’t tell” repeal itself provides that the 1993 law remains on the book for now until the Pentagon can prepare new regulations and training. Then the president, secretary of defense, and chairman of the Joint Chiefs of Staff all have to certify to Congress that repeal is “consistent with the standards of military readiness, military effectiveness, unit cohesion, and recruiting and retention of the Armed Forces.” Until then, openly gay or lesbian service members are theoretically subject to discharge.
      Gay rights organizations had high hopes for the job-discrimination bill as Obama and Congress started work in 2009. But the bill fell victim to other priorities, in particular health-care reform. As for repealing DOMA, the issue never made it past the starting gate in Congress.
      In their last-ditch effort to keep “don’t ask, don’t tell” on the book, Senate Republicans echoed anti-gay organizations in depicting repeal as a political payoff by the Democrats to “the homosexual lobby.” True, gay political organizations are predominantly Democratic. That is hardly a surprise given the Republican Party’s stout opposition to gay rights measures.
      For many gay and lesbian Americans, however, the issues are not political, but personal. Consider, for example, Lisa Howe, fired earlier this month as women’s soccer coach at Belmont University in Nashville, Tenn., after she told her team that she and her partner are expecting a child. Howe had previously kept her sexual orientation private, but thought she could share her good news with the team. ENDA might have allowed her to keep her job.
      With DOMA on the books, many same-sex couples are paying more in taxes or receiving less in federal benefits than their straight-sex counterparts even in the five states and the District of Columbia where gays and lesbians supposedly enjoy equal marriage rights. A federal judge in Massachusetts ruled the law unconstitutional on equal protection grounds this summer, but the Obama administration is continuing to claim that it is obliged to defend the law in court.
      Similarly, the administration had been defending “don’t ask, don’t tell” in court even as it was urging Congress to repeal the law. A federal judge in Riverside, Calif., ruled the law unconstitutional earlier this fall and went so far as to block its enforcement. The administration rushed to a federal appeals court to overturn the injunction. With the law still on the books, it will be interesting to see whether the case continues or is put on hold.
      With Obama set to sign the “don’t ask, don’t tell” repeal on Wednesday [Dec. 22], gay rights leaders are emphasizing that much has been accomplished and that much remains to be done. At least on Saturday night, however, hundreds of Washingtonians were proud to join the Gay Men’s Chorus as they raised their voices to sing of a rainbow flag that waves “o’er the land of the free … and the home of the brave.”

Trying to Avoid Bad Law in the WikiLeaks Case

     Hard cases make bad law, it is said. The U.S. government has a hard case to try to make against WikiLeaks founder Julian Assange for masterminding the biggest dump of classified government secrets in history. It will be up to the courts to try not to make bad law out of it.
     On the surface, of course, the case looks like prosecutor’s child play. Assange has boasted globally about possessing what he claims are 250,000 classified diplomatic cables from the U.S. State Department. Over the past three weeks, he has been publishing them on the WikiLeaks site for all the world to see.
     Confronted with such brazen flouting of the law, the government could hardly be expected to sit by idly, even given the Obama administration’s oft-stated commitment to transparency and openness. So no one should be surprised by Attorney General Eric Holder’s comment on Nov. 29, the day after the classified cables began appearing, that the government had “an active, ongoing criminal investigation with regard to this matter.”
     A closer look, however, makes clear that any prosecution poses difficult problems for the government. It would also carry an inevitable risk of infringing freedom of speech and freedom of the press not just for Assange but also for established news organizations and the public at large.
     The most obvious legal vehicle for prosecuting Assange would seem to be the Espionage Act. The 1917 law makes it a crime for anyone “having unauthorized possession” of information pertaining to national defense to publish or retain it if the information could be “used to the injury of the United States or to the advantage of any foreign nation”
     As soon as the law was mentioned, however, legal experts began pointing out the difficulties. Steven Vladeck, a law professor at American University in Washington, notes that the government has never successfully prosecuted anyone under the Espionage Act for receiving as opposed to leaking classified information.
     In the most analogous case, the government failed in prosecuting two lobbyists with the American Israel Public Affairs Committee (AIPAC) for obtaining classified military information and passing it along to Israeli officials. The government moved to dismiss the case in late April 2009 after the judge ruled the government had to prove that the two lobbyists knew the disclosure would harm the United States.
     Government lawyers may have had that ruling in mind when the State Department’s legal adviser, Harold Hongju Koh, warned Assange in advance of publication of the potential harms that could result. Koh’s letter, dated Nov. 27, claimed that disclosures would “place at risk” the lives of journalists, human rights activists, bloggers and others as well as “ongoing military operations” and “ongoing cooperation” with other countries.
     Maybe, but no conscientious court would accept the claimed dangers just on the government’s say-so. And to date the evidence of concrete harms is lacking.
     Admittedly, the United States has been embarrassed by some of the candid disclosures from diplomats in the field. But Assange claims to be redacting the cables before publication. In any event, host countries that would do harm to human rights activists must already be aware of their conversations with U.S. diplomats. And it is unclear that the State Department diplomats have been guilty of loose lips in regard to ongoing military operations.
     As an alternative, Justice Department lawyers are reportedly looking at the possibility of prosecuting Assange for conspiracy or trafficking in stolen property. That kind of prosecution would also present problems of proof. First is the conceptual difficulty of treating computerized copying as theft; the government, after all, still has everything that Assange claims to have.
     More significantly, the government might need to show that Assange was actively involved in the leak itself. The leaker is widely believed to be Bradley Manning, an Army private and intelligence analyst in Iraq, who has been arrested and charged with unauthorized disclosure of classified information. Perhaps Manning has given government investigators some inculpatory information about Assange, but if so it has not yet been disclosed.
     Even if Assange can be implicated directly in the leak, the government will have to walk a delicate line to avoid a prosecution that would criminalize the ordinary journalistic practice of ferreting out information that the government wants to keep secret. The government is contending that Assange is no journalist, but, as Vladeck suggests, Assange’s status as a journalist or not is not the issue. The First Amendment, after all, extends not only to established news organizations but also to pamphleteers, street-corner speakers, and, yes, Internet publishers of all sorts.
     Apart from these problems, the government will first have to get its hands on Assange, who was ordered released on bail today [Dec. 14] pending an extradition request from Sweden to face charges of sexual assault. It is unclear how either England or Sweden would respond to a U.S. extradition request for what courts in either country might view as a political issue instead of a true crime.
     Events may be coming to a head soon. Assange’s attorney, Geoffrey Robinson, is quoted as saying that the government has convened a federal grand jury in Alexandria, Va., and that an indictment may be imminent. If so, it will be only the first step in a hard case with grave risks for the government if it loses or the First Amendment if it wins.

Handicapping Kennedy’s Vote on Gays in the Military

      Thirty years ago, a young federal appeals court judge in California voted to uphold the Navy’s then-existing policy of discharging any service member who engaged in homosexual acts. The “blanket rule” was “harsh” in individual cases and perhaps “broader than necessary,” the judge wrote. But the Navy had “multiple grounds” for adopting the regulation, the judge concluded, including potential conflicts between homosexual service members and others who might “despise” or “detest” homosexuality.
      Three decades later, the fate of the military’s current “don’t ask, don’t tell” policy on gay service members may depend on whether Supreme Court Justice Anthony M. Kennedy weighs the balance between individual rights and military necessity the same way he did in 1980. Two days of hearings on the policy before the Senate Armed Services Committee [Dec. 2-3] left it uncertain whether Democrats who want to end the policy in the current lame-duck session of Congress can overcome a Republican roadblock led by the committee’s ranking GOP member, Arizona’s John McCain.
      Defense Secretary Robert Gates and Admiral Mike Mullen, chairman of the Joint Chiefs of Staff, both testified strongly in favor of repealing the 1993 law prohibiting openly gay men or lesbians from serving in the military. Along with principled reasons for their position, both men warned that the courts might force the military to scrap the policy overnight if Congress fails to act. As Gates put it, “Given the present circumstances, those that choose not to act legislatively are rolling the dice that this policy will not be abruptly overturned by the courts.”
      Republicans were unmoved. McCain, the decorated Vietnam War hero, seized on concerns from the Army and Marine Corps service chiefs to restate his own opposition to repeal, at least while U.S. forces are in combat in Afghanistan. For his part, Alabama’s Jeff Sessions, who serves on both the Armed Services and Judiciary committees, dismissed fears of a judicial reversal. Sessions said he was “absolutely convinced” the current Supreme Court would uphold “don’t ask, don’t tell” if the challenge reached the justices.
      As on so many ideologically fraught issues, any prediction about the court’s likely stance turns on Kennedy. The liberal justices — Ginsburg, Breyer, Sotomayor, and Kagan — can all be counted as potential votes to strike down the law as an unconstitutional discrimination against gay service members. But Chief Justice Roberts and his fellow conservatives — Scalia, Thomas, and Alito — seem likely to uphold the law.
      The coincidence of Kennedy’s encounter with the military’s earlier policy while serving on the Ninth U.S. Circuit Court of Appeals provides some clues as to his possible stance. But they are 30-year-old clues. Much has changed since then — in the nation, at the Supreme Court, and seemingly in Kennedy’s own judicial persona.
      Writing for the three-judge panel in Beller v. Middendorf, 632 F.2d 788 (CA9 1980), Kennedy opened by saying that the wisdom of the Navy’s policy was for “the political branches” to decide, not the courts. He rejected any procedural grounds for reinstating the three discharged sailors who brought the challenge and then moved to the harder question: whether the policy violated any liberty interest protected by substantive due process.
      Kennedy acknowledged what he called the “substantial academic comment” defending the choice to engage in homosexual conduct as a “fundamental right.” But he noted “substantial authority to the contrary,” including the Supreme Court’s summary decision in 1976 rejecting a constitutional challenge to anti-sodomy laws. Some regulation of consensual homosexual conduct might be subject to challenge, Kennedy continued, but the Navy had advanced sufficient reasons to uphold its policy under a rational-basis standard.
      As an intermediate appellate judge only five years on the bench, Kennedy may have had no other choice in the case. But his comments signaled solicitude toward gays that developed fully after he joined the Supreme Court. In 1996, he wrote the decision, Romer v. Evans, that struck down Colorado’s anti-gay rights initiative on the ground that it singled out gays for unfavorable treatment. And seven years later he again wrote for the Court in striking down state anti-sodomy laws. Kennedy’s broadly worded opinion in Lawrence v. Texas (2003) established the very right that he had not found in 1980: a constitutional right to consensual, homosexual conduct.
      Despite those rulings, Frank Colucci, a political scientist at Purdue University Calumet and author of Justice Kennedy’s Jurisprudence (University Press of Kansas, 2009), says it will be “very hard” for Kennedy to vote to overturn “don’t ask, don’t tell.” Hesitantly, Colucci thinks Kennedy likely again to uphold a policy defended on grounds of military necessity. But he also believes Kennedy “will ask the military to make the argument: what is the military necessity?”
      For that very reason, my own prediction is the opposite. The Pentagon task force’s report on “don’t ask, don’t tell” undermines any justifications offered for the policy, especially if the law is subject to heightened scrutiny in a post-Lawrence world. The court cases challenging “don’t ask, don’t tell” may not reach the Supreme Court soon. But when they do, the justice who wrote Lawrence seems an unlikely vote to deny the freedom established in that decision to men and women who put their lives on the line to defend freedom for the rest of us.

On the Death Penalty, Justice Stevens Regrets

      David Garland could hardly have wished for better luck than to have his new book on capital punishment favorably written up in the New York Review of Books by no less than a retired Supreme Court justice, John Paul Stevens. And for Stevens, the unsolicited assignment from the magazine’s editors gave him the chance to elaborate on his reasoning in concluding two years ago that the death penalty as it operates in the United States today serves no good purpose and should be abolished.
      Garland, a professor of law and sociology at New York University, is a little-known academic with a long list of titles on criminal law and sentencing. In Peculiar Institution: America’s Death Penalty in an Age of Abolition (Harvard University Press, 2010), the transplanted Scotsman seeks in part to explain the persistence of capital punishment in the United States at a time when the practice has been abolished in form or in practice in the rest of the West.
      From Stevens’ account — I have yet to read the book myself — Garland scrupulously avoids offering his own personal conclusion about the wisdom or morality of the death penalty. But Stevens says that Garland’s account fortifies the justice’s own view that the death penalty is “unwise and unjustified.”
      Garland’s book may profitably be read in tandem with an earlier work, The Death Penalty: An American History (Harvard University Press, 2002), by Stuart Banner, who is now a professor at UCLA Law School. Both depict capital punishment in the United States as infected with racism, historically and today, and beset these days with delays that all but negate the death penalty’s major stated purposes: deterrence and retribution.
      Apparently more than Garland, however, Banner shows that along with the persistence of capital punishment, the United States has a long tradition of opposition to the death penalty. Even before independence, some Northern colonies had narrowed the list of capital offenses from those in England. Abolitionist sentiment also dates from colonial times and grew after independence.
      Within the first years of the Republic, five states had abolished the death penalty for all crimes except murder. By the time of the Civil War, no Northern state provided capital punishment for any crime other than murder or treason. And Michigan in 1846 became the first state to abolish the death penalty altogether. Banner treats the decision as the start of a slowly emerging trend. Stevens faults Garland for treating it instead as idiosyncratic, the work of a few liberal reformers in the face of Michiganders’ general views.
      The death penalty continued to recede for a full century after the Civil War. New methods of execution were designed to be more humane: first, the electric chair; then, the gas chamber (and, now, lethal injection). Public executions disappeared. The number of executions fell over time. By the 1960s, abolitionists could see their goal within sight.
      The Supreme Court’s 1972 decision in Furman v. Georgia to invalidate all existing death sentences appeared to fulfill the abolitionists’ goal. As Garland relates, however, the backlash was strong and swift. By 1976, in Stevens’ first full year on the Supreme Court, two-thirds of the states had voted to reinstitute capital punishment.
      Stevens provided the critical fifth vote to uphold state death penalty laws as long as death sentences were not mandatory and jurors (or judges) had full discretion to consider all aggravating and mitigating factors in imposing sentence. Stevens’ hopeful expectation of a rational and equitable system of capital punishment was dashed by the Supreme Court itself. After the retirement of his fellow moderate Republican Potter Stewart in 1981, the court began to retreat from careful policing of capital cases.
      As examples, Stevens points to the court’s refusal in 1987 to act on the implications of a study showing death sentences imposed more often in cases with white victims than in those with victims of color. He faults the court for helping prosecutors block potential jurors with reservations about capital punishment. And he criticizes the court for reversing itself twice, in the span of only a few years, to allow the death penalty in felony-murder cases and to permit “victim impact” statements in capital sentencing hearings.
      In 2008, Stevens went public with his frustrations in a separate opinion in the decision, Baze v. Rees, that upheld the current procedure for lethal injection executions. With no convincing evidence of deterrence, and no legitimate interest in retribution for its own sake, Stevens concluded that it was time for “a dispassionate, impartial comparison” of the “enormous” costs of the death penalty compared to its dubious benefits.
      Garland casts doubt on the likelihood of such a debate. He views public support for the death penalty as a political and cultural phenomenon more than a considered legal policy choice — in effect, one battle in a broader culture war. Risk-averse politicians burnish their law-enforcement credentials by siding with public opinion.
      The Supreme Court has nibbled at the edges over the past decade by prohibiting the death penalty for juveniles or offenders with intellectual disabilities and in non-homicide cases. The rulings, two of them written by the moderate conservative Anthony M. Kennedy, hark to the previous tradition of narrowing capital punishment. But barring a further shift by Kennedy, the Roberts Court’s majority appears steadfast in giving states broad discretion to adopt what Garland provocatively calls this “peculiar institution.”