Misplaced Priorities Leave Us Vulnerable

Lost amidst the controversies over President Bush's NSA surveillance program, changes to the USA PATRIOT Act, and the SWIFT financial tracking program has been something even more fundamental to combating Islamist terrorists: the dismissal of key military personnel because of their sexual orientation.

During the campaign for his first term as President, Bill Clinton promised to permit all citizens to serve openly in the military, without regard to sexual orientation. Meeting stiff resistance from social conservatives, Clinton’s Chairman of the Joint Chiefs of Staff, Colin Powell, crafted a compromise policy that has become known as “Don’t Ask, Don’t Tell” (DADT). Under DADT, military recruiters are prohibited from asking recruits about their sexual orientation and will not investigate the sexual orientation of service people without strong evidence. Homosexual servicemen and women are required to abstain from homosexual sex and may not declare their sexual orientation.

Since September 11, 2001, it has become clear that one of the biggest problems for U.S. intelligence has been a dearth of Arabic- and Persian-speakers in the ranks of the military. Although they are notoriously difficult to recruit, under DADT, the armed forces have also dismissed serving Arabic- and Persian-speakers because of their sexual orientation. Most recently, Bleu Copas, a 30-year-old Arabic linguist who enlisted after 9/11, was dismissed because he is a homosexual, apparently as the result of an eMail campaign from an unknown accuser, and despite the fact that Copas did not acknowledge his sexual orientation during his service.

There are potentially valid reasons to be concerned about the service of openly gay men and women in the U.S. military, but they are based on prevailing culture and potential discrimination against those individuals rather than any inability to serve or any lack of love for country. All of this is, nonetheless, beside the point.

Clearly, homosexuals have served, and continue to serve in the armed forces of the United States, not to mention in those of other nations. Clearly, also, there is a need for Arabic and Persian linguists in our current foreign policy environment. Although I personally believe that there is nothing inherently damaging about the open service of gays and lesbians in the military – it certainly worked for the ancient Greeks – even if it is, the current policy does nothing but shoot American efforts to protect itself from Arabic- and Persian-speaking enemies directly in the foot.

Even if men and women are still to be dismissed from service for being homosexual, surely this can be done on an individual basis, rather than as blanket policy. Don’t Ask, Don’t Tell hamstrings the ability of commanders to evaluate the merits of individual situations and to retain key personnel.

According to a 2005 report by the Government Accountability Office (GAO), more than 9,400 service members were dismissed under DADT through 2004. While that is only a tiny fraction of the total number dismissed for all reasons since 1993, it’s worth noting that more than 750 of the dismissed gay and lesbian service people had critical abilities, including over 300 with crucial language skills. Worse, the Center for the Study of Sexual Minorities in the Military at the University of California, Santa Barbara estimates the cost of discharging and replacing those personnel to have been nearly $369 million!

Don’t we have more important ways to spend taxpayer dollars? Isn't making sure that the military has the language skills it so desperately needs more important than whether a translator is gay? Even if open service for homosexuals remains discouraged, it is time to repeal Don’t Ask, Don’t Tell. Both the American spirit of equality and pragmatism in the face of current realities demand it.

The Senate's Neville Chamberlain of the Constitution

Glenn Greenwald at Unclaimed Territory has another excellent and thorough post today, this time presenting a complete analysis and destruction of the op-ed piece Senator Arlen Specter wrote for Sunday's Washington Post, attempting to justify his proposed revision to the FISA laws.

Specter, who has a reputation as a moderate Republican largely because he is pro-choice, may actually be one of the most insidious saboteurs of the Constitution in Washington today. The senior senator from Pennsylvania's favorite tactic is to come out strongly against the most extreme abuses of power by the Bush administration, but then, once public attention has moved elsewhere, thoroughly capitulate what was ostensibly his initial position.

With regard to President Bush's adventurism in unauthorized surveillance, Specter has repeatedly demonstrated this method of operation, whether refusing to place under oath Attorney General Alberto Gonzalez when he testified in front of the Senate Judiciary Committee, or now, promoting legislation that essentially removes any congressional oversight of the president on surveillance matters. (Not to mention granting amnesty for past abuses.)

Hardcore rightwingers like Rick Santorum and Bill Frist have survived in their position through a confluence of ignorance among the electorate and events that have conspired to make questioning our leaders unpopular. Santorum's politcal life, in particular, is on borrowed time, and Frist's pandering to the religious right is so naked and embarrassing that his reported plans to run for the presidency in 2008 are likely to be stillborn.

Specter, however, is a different breed, who has survived in his careers as author of the Warren Commission single bullet theory, District Attorney in Philadelphia and U.S. Senator since 1981, through a combination of moral posturing unencumbered by actual substance and oily political maneuvering masquerading as moderate compromise.

Make no mistake; Arlen Specter is at least as dangerous to the future of this country and its system of government as anyone who is more easily tagged as an extremist. He champions the type of appeasement never intended to occur between the executive and the legislature, and although it is job and his duty, he is no defender of the Constitution.

Quis Custodiet Ipsos Custodes: Who Watches the Watchmen?

On Tuesday, Attorney General Alberto Gonzalez testified in front of the Senate Judiciary Committee in regard to an investigation by the Department of Justice’s (DOJ) Office of Professional Responsibility (OPR) into President Bush’s warrantless surveillance program conducted by the National Security Agency (NSA). The investigation, initiated at the request of several House Democrats, was halted when the attorneys tasked with the investigation were denied security clearance to examine documents related to the program. Despite the fact that a host of other lawyers at the DOJ had such clearance, it was only the OPR attorneys who were denied access.

While there is no debate that the president has the legal authority to grant or deny clearance, the decision by President Bush in this instance is without precedent. Murray Waas at the National Journal has been following this and other stories centering on abuse of Constitutional power, and his article of July 18^th contains this alarming passage:

H. Marshall Jarrett, OPR's lead counsel, wrote Deputy Attorney General Paul McNulty, on April 21, 2006, to point out that while OPR was denied security clearances to conduct its inquiry, requests from prosecutors and FBI agents tasked with investigating who first leaked details of the NSA surveillance program to the New York Times were "promptly granted."

"We note...," Jarrett wrote, "that the Criminal Division's request for the same security clearances from a large team of attorneys and FBI agents were promptly granted, and that their investigation of certain news leaks about the NSA program is moving forward."

Jarrett also noted that while he and his attorneys were denied the clearances, five "private individuals" who serve on the president's "Privacy and Civil Liberties Oversight Board have been briefed on the NSA program and have been granted authorization to receive the clearances in question." Private citizens -- especially those who serve only part-time on governmental panels -- have traditionally been considered higher security risks than full-time government employees, who can lose their jobs or even be prosecuted for leaking to the press.

In sharp contrast, Jarrett noted, OPR's "repeated requests for access to classified information about the NSA have not been granted. As a result, this Office, which is charged with monitoring the integrity of the Department's attorneys and with ensuring that the highest standards of professional ethics are maintained, has been precluded from performing its duties."

To summarize:

1. Private individuals serving in a part time capacity on a presidential board had access to the information sought by the OPR investigating attorneys
2. Attorneys from the Criminal Division of the Department of Justice also had clearance
3. President Bush personally made the decision to deny access to the lawyers from the Office of Professional Responsibility

Clearly then, there is little justification from a security standpoint for denying clearance to OPR’s attorneys. What justification might there be then? More from Waas:

A senior Justice official said that the refusal to grant the clearances was "unprecedented" and questioned whether the clearances were denied because investigators might find "misconduct by those who were attempting to defeat" the probe from being conducted. The official made the comments without knowing that Bush had made the decision to refuse the clearances.

In a nutshell, what this means is that the President is not deviating in any way shape or form from his determination to ignore the checks and balances built into the Constitution. In light of this, it is not unreasonable to expect Congress to perform its duty and bring Mr. Bush’s efforts to accrue power to which he is not entitled to an end. Unfortunately, there is little cause for hope in that regard.

As described in a previous post, Senate Judiciary Chairman Arlen Specter has worked with the White House to craft what is being touted as “compromise legislation” on the matter, but said legislation is little more than complete capitulation by Congress of its watchdog role. Senator Specter’s bill would abrogate Congressional review of the program, and instead let the FISA Court not only approve warrants, but determine the legality of the surveillance program in complete secrecy. Representative Jane Harman of California, ranking Democrat on the House Intelligence Committee, had it right when she stated that this is nothing more then an “end run” around the FISA law requiring approval of warrants on an case-by-case basis.

This is not accountability.

This is no longer one president asserting his vision of executive power.

This is a direct assault on the Fourth Amendment by the chief executive with the complicity of the legislature.

If Congress abandons its duties of oversight, who watches the watchmen?

Dishonoring Those Who Serve

Today, Valerie Plame Wilson and her husband Ambassador Joe Wilson filed a civil suit against Vice President Dick Cheney, Cheney's former Chief of Staff, I. Lewis "Scooter" Libby, White House Deputy Chief of Staff Karl Rove and 10 as-yet-unidentified Bush Administration officials. While the ongoing criminal investigation by Special Prosecutor Patrick Fitzgerald will likely mean that the Wilsons' suit will be put on hold by the courts until Mr. Fitzpatrick concludes his investigation and any resultant trials, it remains a very public broadside fired at the Bush White House.

The timing of the suit is ostensibly rooted in the need to file it before the statute of limitations runs out, but it is also (at a minimum) fortuitous as columnist Robert Novak has resurfaced to make the rounds of various talking head programs to reiterate his most recent published denial that he did anything wrong in revealing that Plame was a non-official-cover (NOC) agent of the Central Intelligence Agency.

Once again, those backing all things Bush/Cheney are making every effort to lend credibility to the idea that Joe Wilson's 2003 op-ed piece in the New York Times stating that Iraq had not, in fact, tried to purchase yellow cake uranium from Niger in the run-up to the Iraq War, was politically motivated rather than the duty of a patriot who had run out options. Once more, there are attempts to justify the outing of his wife's position as just desserts by those who believe Wilson should have been loyal to President Bush rather than to his country, and worse, there are again declarations that because there is some uncertainty over whether Ms. Plame fit the legal definition of "covert," that national security was in no way harmed by her unmasking.

The matters of law in both the special prosecutor's investigation and the civil suit are myriad and complex - Was Plame's agency status legally covert? Can a sitting vice president be called for a civil trial? Who was the original source of the information on Plame given to Robert Novak? - but in many ways, they are beside the point. The real issue here is further damage to the battered Central Intelligence Agency and the morale of the men and women who work for it.

Regardless of whether the Wilson's win their civil suit; regardless of whether Patrick Fitzgerald successfully prosecutes anyone involved in the Plame Affair in criminal court; regardless of the political damage to the Bush Administration; regardless of Ambassador Wilson's motivations for his op-ed piece; and regardless of whether the outing of Ms. Plame directly undermined national security; the substantive question that needs to be asked is this: How does disclosing the identity of a non-official-cover agent for political purposes affect the ability of the CIA to do its job?

Hammered by the press, Congress and the president in the aftermath of September 11th for failing to do more to stop that tragedy, the Central Intelligence Agency has seen the Director of Central Intelligence (DCI) removed from the apex of the U.S. intelligence community and supplanted by a new Director of National Intelligence (DNI). In the wake of DCI George Tenet's retirement, the CIA further endured the leadership of Congressman Porter Goss, who was reported to have inflicted significant damage to agency morale by bringing his political staff with him when he assumed control, driving out some of the most experienced agents at Central Intelligence. Today, the reputation of the CIA is little more than a pale shadow of its former self.

But what is more important than agency leadership, the CIA's place in the tangled pecking order of the intelligence community or staff changes, is the fundamental trust that covert and NOC agents must have that they will not be revealed by their own side, and that the dangers they endure and the risks they take are above politics. Without that trust, the ability of the Central Intelligence Agency to perform truly high-risk and objective operations is damaged significantly, if not fatally.

After 9/11, it became common knowledge that one of the biggest voids in the arsenal of the United States is in the area of human intelligence. Rife with signal intelligence, electronic intelligence, communications intelligence and imagery intelligence capability through organizations like the National Security Agency (NSA) and the National Reconnaissance Office (NRO), the U.S. both lacks the ability to infiltrate many of the groups that would do our nation and its people harm, and the capacity to accurately and effectively analyze the flood of non-human data that we gather.

Revealing the identity of an agent for political reasons can only discourage those covert and non-official personnel still serving the CIA from remaining within its ranks. It can only cause them to avoid risks and to question whether the people they serve at the highest levels of government understand and appreciate what they do for a living. It can only make recruiting men and women to bolster depleted American human intelligence resources that much harder.

In short, it adds unnecessary difficulty to the ability of the Central Intelligence Agency to do its job, and if it is more arduous for the CIA to carry out its intelligence gathering and analysis duties, then it endangers Americans.

Potential criminal convictions and civil victories aside, that is what matters in the end. Unfortunately it does not appear to have mattered to either the people who outed Valerie Plame, or to those who, in defending that action, reveal themselves to be not only shortsighted and ignorant, but craven and without honor.

The Solution to the Gay Marriage Debate (Seriously)

On Thursday, the New York State Court of Appeals and the Georgia State Supreme Court dealt gay marriage advocates a pair of setbacks, rejecting, respectively, a bid by same-sex couples to win marriage rights, and another to overturn a state constitutional amendment banning gay marriage. Gay rights proponents view the fight as far from over however, even while opponents of homosexual marriage have been encouraged by these events.

Although last month’s proposed amendment to the Constitution expressly prohibiting gay marriage was soundly defeated in the U.S. Senate, the issue will surely surface again. With only Massachusetts having declared that homosexuals can marry legally - and 45 other states with outright legal or constitutional bans in place - perhaps it is time to look at framing this issue in another way.

One of the greatest obstacles to resolving the argument over legalized same-sex marriage is the fact that there are actually two questions being debated, but that they are discussed as if there were only one. Specifically, there are dual elements to marriage: the legal standing it confers on those who enter the covenant in the eyes of society; and the religious connotations it confers on the participants in the view of others of the same faith.

The vast majority of homosexuals who want to be married want equality before the law, not equality in someone else’s religion. They aspire to be treated with equanimity by society, not by a church or synagogue or mosque to which they do not belong, and to which they do not wish to. As long as the word “marriage” is used to define both the civil and religious aspects of a union between two consenting adults, confusion and disagreement will reign.

To address this bi-partite issue, a two-pronged solution is needed:

1. Get government out of the marriage business altogether.
   Government’s only role in the joining of two people should be to regulate the civil aspects of that pairing. It should therefore only be concerned with providing licenses and rights associated with civil unions. That means that all “marriages” (defined as only the legal binding of two adults) become civil unions, whether between a man and a woman, two men or two women.


2. Separate the religious aspect of marriage from the civil.
   The spiritual layers of matrimony should be unwound entirely from the legal, so that each couple can choose to participate in them or to bypass them altogether. Religious organizations would then have the wholly legal right to choose to whom they grant rights of “marriage” within their faiths, and, as private organizations, could exclude people from those rights as they so choose, based on their beliefs.
   

This solution affords a level playing field in the eyes of the law for both heterosexual and homosexual couples. Gays and lesbians would be given 100% of the same legal rights of union that heterosexuals enjoy, up to, and including the name: civil union. There would be no government-sanctioned “marriage” for heterosexuals, while only “civil union” for homosexuals. Further, it provides a separate, spiritual element that avoids the pitfall of anyone practicing a faith that prohibits homosexual marriage from having to sanction that union in the context of their religion. No one’s legal rights are abridged because of the particular beliefs of another person or group whose religion they do not share, and “marriage” can be defined however one wants within the context of each faith, as it will only affect those who practice it.

Under such a solution, it’s likely that there would still be people who protest that marriage should only be between one man and one woman based on whatever faith they practice, or that they shouldn’t have to have their right to “marriage” reduced to simply a right to “civil union.” Any such protest however, quickly exposes such individuals to be uninterested in the civil liberties of people not of their faith, and rather focused solely on imposing their own belief system on others. (Some may argue that that is readily apparent today.) Such arguments against this solution demonstate that civil union and marriage are not, in fact, equivalent today, when the former is clearly being used as a second tier solution by those who advocate it.

Clearly this is a reasonable and rational proposal, but it will be interesting to see if there is a reasoned and rational response should it make it into the realm of public discussion. Based on the current positions of opponents to same-sex marriage, it seems unlikely, but maybe this solution can at least sway those presently on the fence.

Presidential Lawlessness

On this, our nation’s birthday, it’s important to pause and reflect upon what has made the United States of America – flawed though it is – the greatest nation on the planet. The roots of that greatness lie in the country’s ability to transfer power peacefully and in the checks and balances that make that transfer possible. Those checks and balances, in turn, rest on the rule of law and adherence to the best possible good-faith adherence to the Constitution.

Leaders, being human beings, are not – and cannot be expected to be – perfect. But as citizens of this nation, it is our responsibility to ensure that we pick the best person for the job; the one whose policies make the most sense for the times, and in whom we can have faith that he will adhere to the vision that the founders of the United States had for this country. We are a nation of laws, not a nation of men.

Which brings us to President George Walker Bush, and the responsibility American voters have for him. Due oversight has not been exercised by the governed, and this chief executive has pursued policies and means that will negatively affect the essence of federal leadership for years to come. Other presidents have been occasionally lawless: Lincoln with his suspension of habeus corpus; FDR and his internment of Japanese Americans during World War II; Nixon with Watergate. We have never seen, however, a president who has been lawless in as serial a fashion as the current occupant of 1600 Pennsylvania Avenue.

Fortunately, even some members of Mr. Bush’s own party are aware of the implications of his presidency. As much as Democrats in opposition to George W. Bush, Republicans who truly appreciate that for which the United States stands are our hope for reconciliation and for a resoration of the institutional equilibrium so necessary to the success of the American system.

To read more on this topic, from the perspective of one such Republican, check out “An Interview With Bruce Fein: A Conservative Concerned About Presidential Lawlessness” over at None So Blind. (Mr. Fein served as Deputy Attorney General under Ronald Reagan, and voted for President Bush twice. He’s no left-winger.)

It’s a lenghty piece, but very much worth the effort.