President Barack Obama is taking heat from liberal and gay rights groups for his administration's successful push to reinstate "Don't Ask, Don't Tell," which Obama has said he wants to repeal, on the same day that the Pentagon began accepting openly gay servicemembers. A district court judge struck down the Clinton-era policy on Oct. 12, but the White House and Justice Department sought a temporary stay on that ruling, which they got on Wednesday. Obama said the policy "will end on my watch" but the change "has to be done in a way that is orderly," which is to say, through Congress. That might be a defeat for gay rights, but it's a remarkable victory for two issues that are arguably just as important and just as in need of resuscitation: the rule of law and the separation of powers.
The White House's behavior signals an important shift from some of the most notorious practices of the Bush administration. For much of his eight years in office, President George W. Bush's White House sought to internalize legal authority and circumvent the legislative and judicial branches, especially regarding matters of national security. The examples are as numerous as they are disturbing.
When Congress would not grant the White House desired legal authorities, such as those relating to torture, the administration simply gave those powers to itself by asking the Justice Department's Office of Legal Counsel to draft a secret finding. If Congress passed a law that Bush didn't like, such as the 2005 Detainee Treatment Act, rather than go through the trouble of pushing for a court challenge or new legislation, Bush would issue a "signing statement" commanding the government to ignore the new law. The White House designed military commissions to replace civilian trials of terrorist suspects in part because the military is a part of the executive branch, unlike the court system, which is beyond its reach.
Perhaps the most notorious example is the politicization of the Department of Justice under Bush, an investigation of which culminated in the 2007 resignation of Attorney General Alberto Gonzales. These are just a few examples; a fuller examination of Bush's executive consolidation of power can be found in this 2007 Frontline documentary and Jane Mayer's The Dark Side.
In short, the Bush administration sought to internalize the powers of all three branches of government within the executive, circumventing the Constitution's carefully crafted system of checks and balances. To be fair, a number of these dubious practices remain in effect under Obama. But the imperial presidency, as critics accused Bush of creating, is certainly less descriptive of Obama's White House. In his defense of "Don't Ask, Don't Tell," Obama is working hard to resist some of those executive abuses, even when he might be tempted to return to them. In this context, Obama's otherwise strange defense of "Don't Ask, Don't Tell," as explained here by the Associated Press' Mark Sherman, should make a lot more sense.
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.
The Obama administration's active defense of a policy it also opposes has disappointed many liberal supporters and will cause real harm to any gay servicemembers expelled after today. But the return of a White House that respects the separation of powers and the rule of law even when its leader doesn't like the outcome should be a welcome development.
Image: David Addington, Chief of Staff and former counsel to Vice President
Dick Cheney, testifies before the House Judiciary committee for a
hearing on the Bush administration's interrogation policy, including allegations that Addington and others had green-lit torture, on June 26, 2008. By Melissa Golden/Getty Images.