Robert Gates Demanded that POTUS Seek Stay of Invalidation of DADT. President Was “Very Angry” and Told Him To “Suspend Application.” Gates Refused.

February 23rd, 2016

Former Secretary of Defense Robert Gates has a fascinating interview on CSPAN. At around 35:40, he discusses the period when Obama was “the angriest with him,” concerning the decision to stay the district court’s invalidation of Don’t Ask, Don’t Tell in 2010. In September 2010, Judge Virginia A. Philips of the Central District of California found that DADT was unconstitutional in Log Cabin Republicans v. U.S.

Here is my rough transcription of his comments:

“When he was the angriest with me was over Don’t Ask, Don’t Tell, and it was over a difference in strategy about how to implement it. A federal judge in California had ruled DADT unconstitutional. That meant the law was a gonner right then, unless we got a stay of that order from the 9th Circuit Court. The President was very unwilling to seek the stay. He wanted to go ahead and get rid of DADT. I said ‘You really can’t let this be done by an act of a single judge, or an executive order. This needs to be done with the consent and support of the Congress.’ He said, ‘Alright, I will direct the Attorney to seek the stay, but you have to suspend application of the law.’ And I said, ‘Mr. President I can’t do that. There is either law or no law. You are the constitutional lawyer, but I have an obligation, I took an oath to obey the constitution, obey the law. I can’t do that.’ It was pretty tense. Finally he said, ‘I won’t make you do anything you don’t feel is right.’ But it was very clear that he as very angry with me.”

This is a remarkable story of Robert Gates lecturing Barrack Obama on the Constitution. The willingness of a cabinet official to push back against the President, which made him “very angry,” was extremely salutary for the rule of law. I fear that Gates was an outlier, and others in the cabinet were far more pliable.

The government did seek a stay, much to criticism of LGBT groups.

“We are not surprised by the government’s action, as it repeats the broken promises and empty words from President Obama avowing to end ‘don’t ask, don’t tell’ while at the same directing his Justice Department to defend this unconstitutional policy,” said Dan Woods, a lawyer representing the group. “Now that the government has filed a request for a stay, we will oppose it vigorously because brave, patriotic gays and lesbians are serving in our armed forces to fight for all of our constitutional rights while the government is denying them theirs.”

Mr. Obama campaigned against the “don’t ask, don’t tell” law and has asked Congress to repeal it. But his efforts have been criticized by supporters of equal rights for gay men and lesbians as too slow and insufficient, and the lawsuit has put his administration in an awkward political position.

In his defense of the stay, the President said he simply could not ignore the laws:

At a town-hall-style meeting with young adults on Thursday, Mr. Obama noted that he had been working on getting the law repealed and that a court had recently struck it down as unconstitutional, although he did not specifically address his administration’s appeal of the ruling.

“I agree with the basic principle that anybody who wants to serve in our armed forces and make sacrifices on our behalf, on behalf of our national security — anybody should be able to serve, and they shouldn’t have to lie about who they are in order to serve. And so we are moving in the direction of ending this policy,” he said.

But, he added: “It has to be done in a way that is orderly, because we are involved in a war right now. But this is not a question of whether the policy will end. This policy will end, and it will end on my watch. But I do have an obligation to make sure that I’m following some of the rules. I can’t simply ignore laws that are out there. I’ve got to work to make sure that they are changed.”

The case was ultimately mooted by the congressional repeal of DADT–just as Secretary Gates predicted it ought to be.


H/T Adam White who sees everything