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Judicial deference to military may affect gay rights, war on terror

By Phillip Carter
FindLaw Columnist
Special to CNN.com


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FINDLAW

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LAW DICTIONARY

(FindLaw) -- Recently, in Lawrence v. Texas, the Supreme Court recognized the liberty rights of gay persons. Does that mean that the military's "don't ask, don't tell policy" is unconstitutional?

On July 7, former Army Lt. Col. Loren S. Loomis, a gay man who was discharged for violating the policy, filed a suit in federal court arguing just that. But Loomis will have an uphill battle, and in the end, is likely to lose his case.

The reason for his poor chances is the longstanding tradition of judicial deference to the military. American courts nearly always defer to the judgment of the executive branch and the military where matters of national security (broadly defined) are concerned.

The doctrine has been questioned in a series of recent high-profile cases. Nevertheless, it still stands.

The constitutional roots of judicial deference on military matters

To understand the roots of the tradition of deference, it is necessary to refer first to constitutional text and history.

Article II of the Constitution gives the Executive Branch power over international policy and military affairs. Specifically, Section 2 says that "The President shall be commander in chief of the Army and Navy of the United States, and of the militia of the several states, when called into the actual service of the United States." Section 2 goes on to empower the President to make treaties and carry on foreign relations.

As the ratification debates reveal, the Framers assigned these powers to the President because they feared that judicial or congressional interference in these areas might render the new nation weak, or incapable of rapid response to threats from abroad. The Framers also felt that because, at the time, the majority of national security knowledge and expertise lay in the Executive Branch, decision making on such issues properly belonged to that branch.

Accordingly, while Article II gives expansive military and foreign policy powers to the President, Article I gives Congress only limited military powers. It may "define and punish piracies and felonies committed on the high seas, and offenses against the law of nations"; "declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water"; "raise and support armies, but no appropriation of money to that use shall be for a longer term than two years"; "provide and maintain a navy"; "make rules for the government and regulation of the land and naval forces"; and provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions . . ." But that is all.

Finally, Article III gives the judicial branch no power at all over the military. As a result, the courts, unlike the other two branches, have no constitutional mandate to make military policy.

The tradition of judicial deference to the military grew out of this constitutional structure and history. As commander-in-chief, the argument goes, the President should have the utmost latitude in making decisions that affect the readiness of America's military. Similarly, Congress deserves free rein in exercising its Constitutional responsibilities to fund the military and make laws for its governance. In contrast, the courts have no such Constitutional mandate to make military policy; thus, they should yield to decisions by the President and Congress.

Another reason for deference: Reluctance to intervene in interbranch clashes

In addition, the case for deference has been strengthened by the courts' own reluctance to referee fights between the two elected branches of government. Owing their own powers to life-tenured appointment, not periodic election, Supreme Court Justices and other federal judges have been reluctant to overturn the majority will of the people, as expressed through the President and Congress.

Occasionally, federal judges have stepped in when the two other branches have clashed, and when the Constitutional division of labor has been unclear. For instance in Youngstown Sheet & Tube Co. v. Sawyer, also known as the "Steel Seizure Case," the Supreme Court intervened when President Harry Truman attempted to seize several steel mills in order to prevent a labor stoppage during the Korean War.

President Truman argued that he had the inherent power as commander-in-chief to take this action, but the court disagreed. In a sharp rebuke, the court held that Truman had neither the lawmaking authority nor executive authority to take such action -- even in wartime. In his oft-cited concurrence, Justice Robert Jackson wrote that the President's "command power is not such an absolute as might be implied from that office in a militaristic system, but is subject to limitations consistent with a constitutional Republic whose law and policymaking branch is a representative Congress."

In this instance the court was willing to say that Congress, not the president, possessed the relevant power. However, in military matters, the Supreme Court has typically supported -- rather than curtailing -- the exercise of presidential power.

To take the most notorious -- and shameful -- example, during World War II, the Supreme Court invoked the doctrine of deference to the military in Korematsu v. United States, to uphold the decision to intern 120,000 Japanese-Americans with scant regard for their constitutional rights.

In so doing, the court emphasized the "real military dangers" the detention was intended to address. It also stressed the fact that the decision had been made by "the properly constituted military authorities . . . because they decided that the military urgency of the situation demanded" it.

Plainly, the Korematsu Court -- though it purported to apply "strict scrutiny" to a policy based on national origin discrimination -- was actually deferring broadly to the judgment of military decision makers, and of President Roosevelt in particular. In addition, it did so even though the case was decided in 1944, when the war had turned in America's favor.

Modern-day judicial deference to the military

Judicial deference to the military also was exemplified by two important decisions in the 1980s, near the height of the Cold War.

In 1981, a group of plaintiffs argued that the draft was unconstitutional because, among other reasons, it excluded women. In Rostker v. Goldberg, the Supreme Court refused to overturn the draft policy, saying it reflected the considered judgment of the military that it needed men for combat -- and thus men for a draft.

The court found it "difficult to conceive of an area of governmental activity in which the courts have less competence. The complex, subtle, and professional decisions as to the composition, training, equipping, and control of a military force are essentially professional military judgments, subject always to civilian control of the Legislative and Executive branches."

The court also added it that "judicial deference ... is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged."

Then, in 1986, in Goldman v. Weinberger, the Supreme Court ruled that the Air Force could restrict the religious freedom of a Jewish officer who sought to wear a yarmulke -- despite the First Amendment issues this regulation posed. Again the court made clear that, under the circumstances, "courts must give great deference to the professional judgment of military authorities concerning the relative importance of a particular military interest." Today, Goldberg stands for the proposition that the military may burden the constitutional rights of its members with a minimum of interference from the courts.

Judicial deference and gay rights

During the past three decades, challenges to the "don't ask, don't tell" policy for gay personnel have been unsuccessful. Courts have tended to both cite Bowers v. Hardwick, and invoke the tradition of deference to the military.

Now, in Lawrence v. Texas, the court has overruled Bowers. Moreover, the court's opinion, written by Justice Anthony Kennedy was sweeping. It recognized not only a broad constitutional right to liberty, but a more specific right to engage in "intimate conduct."

No wonder, then, that Loomis has gone to court to use Lawrence to challenge the "don't ask, don't tell" policy. His argument will be simple: Under Lawrence, his intimate conduct is protected as a fundamental right. The military's "don't ask, don't tell" policy burdens that fundamental right, by requiring the military to discharge all those who express their gay identity through statement, act, or marriage.

Accordingly, the policy -- like all those that burden fundamental rights -- must be subjected to strict scrutiny. That means that for the policy to survive, the court must hold both that there is a compelling state interest at stake, and that the policy is narrowly tailored to achieve that interest.

The courts will almost certainly find a compelling interest behind this policy. According to the "don't ask, don't tell" statute itself, it is the interest in maintaining "high morale, good order and discipline, and unit cohesion." To be effective, America's military must put mission accomplishment and unit needs over individual rights in order to be successful.

Personnel policies which promote unit cohesion, morale and discipline are likely to affect the way our soldiers perform in combat, which ultimately relates directly to our national security. It's hard to think of a more compelling interest than the survival of the nation, or the protection of its people.

But what about narrow tailoring? Is the "don't ask, don't tell" policy narrowly tailored to serve this compelling interest? In a different context -- such as civilian government employment -- a court would almost certainly say no. Lawyers have argued in past challenges that the "don't ask, don't tell" law is both underinclusive and overinclusive -- two fatal flaws in this area of Constitutional law.

But in the military context, the issue might not play out that way. The military's lawyers will almost certainly argue that their judgment deserves great deference from the courts. "Don't ask, don't tell" might not be perfect -- but it reflects the considered judgment of officials with lots of experience in this area, and their judgment ought not be disturbed. This is the very essence of national security deference -- and the military's lawyers are likely to prevail.

Additionally, the government's lawyers will likely argue that this policy emerged after a contentious and highly publicized debate, and that it would be wrong for unelected judges to upset the compromise between the two elected branches of government. This argument may find particular traction in this case, where the courts already feel inclined to defer on national security grounds.

Judicial deference to the military, and the war on terrorism

Meanwhile, the doctrine of judicial deference to the military has faced -- and is likely to continue to face -- some severe tests relating to the war on terrorism.

Since September 11, 2001, President Bush has used this power to designate U.S. citizens Yaser Hamdi and Jose Padilla and Qatari citizen Ali Saleh Kahlah al-Marri (whose federal court trial was recently interrupted by the designation) as "enemy combatants," and to order their detention by the Defense Department. The Bush administration has argued for a robust form of deference, where courts would summarily dismiss any challenges to military or presidential decisions with respect to combatants.

But in December 2002, Southern District of New York federal judge Michael Mukasey ordered the Bush administration to allow Padilla access to an attorney. Moreover, Mukasey expressed the view that federal courts have both the power and the duty to examine the president's decision to designate a citizen an "enemy combatant."

The government has appealed the decision to the U.S. Court of Appeals for the Second Circuit, which has not yet ruled. In a similar case involving Yaser Hamdi, the U.S. Court of Appeals for the Fourth Circuit upheld the administration's right to confine enemy combatants, largely on the basis of the doctrine of judicial deference to the military.

Meanwhile, as is well known, America has also detained more than 600 men in Afghanistan and transferred them to Guantanamo Bay, Cuba as unlawful enemy combatants. All of these men now live in a legal twilight zone -- neither civilian criminal suspects entitled to federal court trials, nor lawful enemy combatants entitled to Prisoner of War status under the Geneva Conventions.

The detainees have all filed legal challenges to their detentions. But except for a few minor victories, they have all been turned away by the courts in deference to the President's judgment on these men. For example, in February 2002, after an initial hearing, a Los Angeles federal judge agreed in part with the government's assertion of deference, and dismissed a petition by the men at Guantanamo Bay.

Just this month, it was reported that President Bush has designated six possible defendants from Guantanamo for trial by military tribunal -- not in the federal courts. No courts have ruled yet on the constitutionality of these tribunals, or the Pentagon procedures set up to implement them.

Moreover, the lack of an appeals route from the tribunals to federal court means that any convictions will not be reviewed as a matter of law. A defendant would have to seek review collaterally, such as with a writ of habeas corpus, if he wanted any sort of judicial review for these tribunals. Given the courts' reluctance to interfere with the military, it's unlikely such an effort would succeed.

The future of judicial deference

Does the judicial deference doctrine still make sense today? For a number of reasons, it may not be as well-justified as it once was.

Recall that one early justification for the doctrine was the Executive Branch's superior national security knowledge and expertise. In the modern era, however, judges are more knowledgeable about foreign policy than they may once have been. The information asymmetry which used to exist between the Executive and Judicial branches has been wiped away, thanks to CNN and the rise of the modern media establishment.

Moreover, to the extent that there are gaps in judges' knowledge, the executive branch can provide them with sensitive national security information through various means spelled out in the Classified Information Procedures Act. Judges can review this information "in camera" -- outside the presence or access of the parties -- if necessary to preserve secrecy and security.

Over time, the military itself has also changed in ways which are relevant to the issue of judicial deference. Our all-volunteer force is a more diverse cross-section of our society than any employer or university. To the extent that society has become more tolerant of gay persons and more inclined to honor their rights, so too has the pool of young men and women joining today's military.

These young people are the product of a society that recognizes certain fundamental rights and liberties for all Americans. When they enlist, they choose a life that involves sacrifice and hardship. But they never fully leave behind the values and beliefs they had when they joined the service.

For this reason, deference to military policies that infringe individual liberties on this, and other issues, can create tremendous dissonance between the values of the military and civil society -- leading service persons to question and doubt the military's institutional values.

The dissonance and doubt add other variables with which commanders have to contend as they train, assimilate, socialize, and lead soldiers. Thus, the very policies intended to bolster morale and unit cohesion, good order, and discipline, may end up detracting from all these values if many service members consider the policies intolerably unjust.

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Phillip Carter, a FindLaw columnist, is a former Army officer who currently attends UCLA Law School and writes on legal and military affairs.


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