Mark is surely right to point out that Don’t Ask Don’t Tell is the law, and thus more complex than when Harry Truman desegregated the military.
But I disagree with his legal analysis. Given the massive shortage of trained linguists in the military, and the primacy that we are now placing on better intelligence work, keeping our dwindling (and never particularly large) cadre of fluent Arab speakers who already have security clearance is indeed “essential to the national security of the United States.”
This is why the “stroke of a pen” is not quite a fallacy; the President would violate the law were he to resist dismissal of a servicemember who lacked special skills — but in the case of intelligence work, this does not seem to me to be a difficult call.
So Mark: you’re on. $100 says that DADT is still the law on Election Day 2010.
You should give Mark the lame-duck sessions as well-the Democrats are more likely to pass a bill after they’ve lost their majority.
I think you are too generous to Mark. Stop loss authority has been upheld for every member of any unit that is activated during an emergency. Courts have made no effort to question the executive branch’s determination that an individual was “essential to the national security of the United States” in those cases - which are based on the same statutory provision. The US has forced many individuals to remain on active duty regardless of their skill set, and the decisions are not made on an individual basis. Mark seems to be reading this statute without reference to existing practice regarding this provision or to court cases which have interpreted this provision in the context of stop loss. Surely a reasonable interpretation of the law would take account of both of those things.
I wouldn’t take the bet one way or the other, but unless this provision must be interpreted by special rules when it involves DADT, I simply don’t understand how anyone can claim that individualized determinations with such a high bar are necessary for ending DADT but not to engage in stop loss.