Did Miers Allow Armed Forces to Flout Law?

There is no reason to doubt the integrity of Harriet Miers, a person whom President Bush trusts and has nominated to the Supreme Court. There is reason for concern, however, about her actions as White House counsel on legal matters affecting the military.

Miers does not have a judicial paper trail, but to the greatest extent possible the Senate should consider her record as the President’s chief legal adviser. The Office of White House Counsel sits at the intersection of law, politics and policy. Given this blend of responsibilities, the most essential function a counsel can perform for a President is to be an “early warning system” for potential legal trouble. We wish there were evidence that Miers has been sufficiently vigilant on matters affecting the military.

As I reported in a series of articles in HUMAN EVENTS (here, here, here, here, and here), since 2004 the U.S. Army has been violating Defense Department regulations regarding the assignment of women in or near land combat. At issue are improper assignments of female soldiers to certain combat support units that collocate (operate 100% of the time) with infantry, armor and Special Operations Forces. Current rules require those units to be all male.

Women and Selective Service

By permitting these illicit assignments, the Defense Department has circumvented a law requiring that it formally notify Congress approximately three months in advance of any such policy change. The law also requires an analysis of the effect such changes could have on the exemption of women from Selective Service registration. None has been provided. 

There are only three explanations for this disappointing situation. As White House counsel, Miers either approved of the Defense Department’s improper assignments of women to units required to be all-male, without prior notice to Congress, or she was unaware of the long-term legal consequences of that practice, or she gave sound advice that the President did not heed.

In any case, the Defense Department and Army are still flouting the law. Since the White House will correctly decline to release privileged communications between Miers and the President, it will be difficult to determine responsibility for the situation.

In January, Bush said that his position was: “No women in [land] combat.” The Army nevertheless continued to assign female soldiers to units designated all male, in violation of the congressional notification law. A highly publicized debate ensued, led by House Armed Services Chairman Duncan Hunter (R.-Calif.).

On May 18, the committee voted for legislation sponsored by Hunter and Personnel Subcommittee Chairman John McHugh (R.-N.Y.), which would have codified current policy on women in combat. The White House counsel has the responsibility to provide advice on the legal and political aspects of legislation. We have no way of knowing what Miers recommended in this case.

A week later, Defense Secretary Donald Rumsfeld asked Hunter to withdraw the legislation. Nothing has been done since then to bring the Army back into compliance with Pentagon policy and the congressional notification law.

Legal Confusion

Even civilians should be concerned. The ACLU and feminist groups have pushed for decades to subject women to Selective Service registration for a future draft. The Supreme Court has historically upheld young women’s exemption from registration because women are not assigned to land combat units on the same basis as men (Rostker v. Goldberg, 1981, reaffirmed by a Massachusetts U.S. District Court, 2003).

If women’s land combat exemptions are eliminated, the Supreme Court could easily reverse precedent by deferring to the military’s new policy. By failing to comply with the congressional notification law, the Bush Administration will have laid the groundwork for an ACLU victory.

In the same way, unresolved ambiguity on the issue of homosexuals in the military has created potential legal jeopardy. The controversy centers on “don’t ask, don’t tell,” the controversial policy proposed by then-President Bill Clinton in 1993. After months of controversy, Congress rejected “don’t ask, don’t tell,” the idea that gays can serve in the military as long as they don’t say they are homosexual.

Members recognized that such a policy would be unclear, unenforceable, and indefensible in court. Instead, overwhelming majorities in both houses of Congress passed a law to codify the long-standing policy that “homosexuality is incompatible with military service.”

But Bill Clinton had made a campaign promise to accommodate gays in the military. He signed the exclusion law, but later announced enforcement regulations, still known as “don’t ask, don’t tell,” which are inconsistent with it. These administrative regulations, crafted by liberal activist White House Counsel Bernard Nussbaum, were designed to circumvent the law and accommodate discreet homosexuals in the military. The result has been constant confusion, controversy and potential legal jeopardy.

In a 1996 decision of the U.S. Court of Appeals for the 4th Circuit upholding the law, Judge Michael Luttig wrote unequivocally about the difference between the statute and “don’t ask, don’t tell.” Instead of naming Luttig or someone like him to the Supreme Court, Bush has named a modestly qualified nominee because she is a trusted friend.

We don’t know whether Miers agrees with Clinton’s convoluted policy, whether she is unaware of the difference between “don’t ask, don’t tell” and the law, or whether she gave sound advice on the issue that the President did not heed. We do know that gay activists are counting on contradictions inherent in “don’t ask, don’t tell” to achieve their most extreme goals.

Lawsuits have already been filed challenging the constitutionality of the homosexual exclusion law—this time citing the Supreme Court’s 2004 Lawrence v. Texas decision, which struck down state anti-sodomy laws. Justice Sandra Day O’Connor concurred in Lawrence v. Texas, which cited foreign court precedents in support of the ruling.

In the next round of litigation, homosexual activists plan to cite a 1996 ruling of the European Court of Human Rights, ordering the United Kingdom to accept gays in the British military. Supreme Court rulings are unpredictable, but the legal ambiguity caused by Clinton’s “don’t ask, don’t tell” policy, combined with Lawrence and foreign court precedents, could result in an unexpected victory for homosexual activists.

Deference to the Military

We cannot expect nominee Miers to comment on these lawsuits or to answer inquiries about her confidential advice to President Bush. Still, Senate Judiciary Committee members should question Miers about her philosophy on congressional oversight of the military, judicial deference to policies made by Congress, the use of foreign court opinions as precedent, and other principles that would guide her judgment.

Regardless of what happens with the nomination, the problem remains that the Bush Administration has allowed major judicial and military issues to become needlessly muddled.

On matters of women in combat, registration of girls for Selective Service, and homosexuals in the military, to which policy will the future Supreme Court defer?

During his remaining three years in office, Bush can still order the Pentagon to comply with the congressional notification law on women in combat, and to drop Clinton’s troublesome “don’t ask, don’t tell” regulations. He should do this not because he has nominated Miers to the Supreme Court, but because the President has the constitutional responsibility to faithfully execute the law.